Client Alert
(by Moore Capito, Christian Farmakis and Andrew Terranova)
On April 3, 2020, lenders began accepting and issuing Paycheck Protection Program loans (PPP Loans) to qualifying small businesses. In less than two weeks, the approximately $350 billion appropriated to the PPP Loans were fully depleted. Over the past two weeks, we have received questions related to the application process, appropriate use of loan proceeds during the covered period, calculating the level of loan forgiveness, and the possibility of further funding.
We understand that no two businesses are the same and that’s why we are uniquely tailoring our approach to acquisition and utilization of the PPP Loans to suit your needs. If your business received a PPP Loan, we are prepared to provide counsel to your business on how loan proceeds may be allocated.
Yesterday, the U.S. Senate passed a major enhancement to the PPP Loan program. While action by the U.S. House of Representatives is not expected until Thursday, we fully expect $310 billion additional dollars to be added to the PPP Loan program. Therefore, it is important for qualifying businesses that missed out on the first round of funding to be prepared to act quickly. The first step is ensuring your application is properly completed and submitted to an SBA-approved lender. The application can be found here and SBA-approved lenders can be found here. We have counseled dozens of clients on the application process and we are happy to assist your business as well.
If you have questions about the application and/or utilization of PPP Loans, please contact us and we will help guide you through the process. For general information on PPP Loans, check out SBA’s FAQ here.
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Client Alert
(by Blaine Lucas, Stephen Korbel and Max Junker)
Modifies Public Meeting Rules, Suspends Land Use Application Processing Deadlines on a Limited Basis, Authorizes Taxing Bodies to Postpone the Property Tax Discount Date and Waive Late Fees and Penalties, and Authorizes the Remote Use of Notaries.
On April 20, in response to the COVID-19 pandemic, Pennsylvania Governor Tom Wolf signed Act 15 of 2020. Act 15 was unanimously approved by the Commonwealth’s Senate and House of Representatives, and takes effect immediately. As part of broader legislation regarding healthcare cost containment, Act 15 addresses a number of critical issues for Pennsylvania local governments, most notably how to conduct business in compliance with applicable statutory requirements when the physical presence of their officials, constituents, development applicants and other interested parties is either highly discouraged by public health officials or prohibited altogether. This can be particularly problematic for applicants for a variety of local government land use approvals, consideration and action on which usually are statutorily mandated to take place at public meetings and hearings.
Among other things, Act 15:
- Eliminates the requirements for physical attendance at public meetings during the Governor’s declaration of a disaster emergency by permitting the use of “authorized telecommunications devices.”
- Provides for the limited suspension, or “tolling,” of statutory deadlines for municipal boards and agencies to hear and act upon a wide variety of land use and other development applications.
- Authorizes taxing districts to extend the deadline for payment of property taxes at a discount and to waive fees and penalties for late payments.
- Authorizes the remote use of notaries via communications technologies.
Use of Telecommunications Devices to Conduct Public Meetings
Until the expiration or termination of the COVID-19 disaster emergency, an agency, department, authority, board, council, governing body or other political subdivision included in the declaration may conduct hearings, meetings, proceedings or other business through the use of an “authorized telecommunications device”, defined as “any device, which permits, at a minimum, audio communication between individuals.” Act 15 also dispenses with provisions in certain municipal codes, such as the Borough Code, requiring the physical presence at a meeting location of a quorum of the participating members, as long as a quorum is otherwise established through the authorized telecommunications device.
To the extent practical, the local government entity shall post advance notice of each meeting conducted through an authorized telecommunications device (1) on the entity’s publicly accessible website, if any, or (2) in an advertisement of general circulation, or (3) both. The public notice shall include the date, time, technology to be used, and public participation information. To the extent practical, the entity shall allow for public participation through an authorized telecommunications device or written comments, which may be submitted to the entity’s physical address through the United States mail or to an email account designated by the entity to receive the comments.
A local entity shall not consider any application, plat, plan, submission, appeal or curative amendment unrelated to the Governor’s COVID-19 declaration, unless notice to the public and interested parties has been provided at least five days prior to the meeting via (1) a post on the entity’s publicly accessible website, if any, or (2) a newspaper of general circulation, or (3) both. This requirement is not limited to meetings conducted through authorized telecommunications devices, and as a result may impose advance public notice requirements on certain actions that did not previously exist. For example, the Municipalities Planning Code does not mandate that a local governing body provide advance public notice of subdivision and land development applications.
Finally, in the event a local entity calls a meeting under exigent circumstances, without advance notice to the public, to address any issue related to the Governor’s COVID-19 declaration, minutes of that meeting “shall be posted” within 20 days after the meeting or before the next regularly scheduled meeting, whichever is earlier. However, this section of Act 15 does not specify the manner of posting.
Extensions for Existing and Pending Approvals
Act 15 also provides for the limited suspension, or tolling, of the statutory time limits for review, hearing and decision on the “approval” of an application, plat, submission, appeal or curative amendment. An approval is defined by cross-reference to the definition of that term in Section 2 of the 2013 Development Permit Extension Act, which covers local government approvals pursuant to over 30 statutes, including the Municipalities Planning Code, the Flood Plain Management Act, the Stormwater Management Act, the Pennsylvania Construction Code, and the various city, borough and township codes.
Specifically, as to any such application for approval received or pending as of the Governor’s COVID-19 declaration on March 6, 2020, the number of days provided to satisfy statutory time limits in review, hearing, and decision shall be suspended and tolled as of the date of that declaration, or as of the date received if received during the pendency of the declaration, and shall resume 30 days after the effective date of Act 15. Since the effective date of Act 15 was April 20, 2020, tolling would cease on May 20, 2020. Thus, for applications filed on or before the date of the Governor’s COVID-19 declaration, the total length of the tolling period would be 75 days. The length of the tolling period would decrease for later filed applications, until there would be no tolling for an application filed on or after May 20.
The local entity must notify the applicant of the declaration, the time extension, and of the right to request any meetings, hearings, or proceedings be conducted using telecommunications devices. The failure to receive the notice does not affect the tolling of the number of days. Within 30 days of the effective date of the Act, an applicant may request that a meeting, hearing or proceeding be held in accordance with Act 15 during the period of the COVID-19 declaration. The local entity shall have discretion to proceed with the request under Act 15. If a proceeding is authorized, the applicant and each party receiving actual notice of the proceeding shall be deemed to waive any challenge under the Sunshine Act or other provision of law that governs the notice, conduct or participation in a meeting or proceeding.
Property Tax Relief
Act 15 authorizes any taxing district, by majority vote of its governing body, to do any of the following with regard to 2020 real property taxes:
- Collect the tax at the discount rate no later August 31, 2020.
- Waive any late payment fee or penalty, if paid in full by December 31, 2020.
Authority for Remote Notarial Acts during the COVID-19 Disaster Emergency
Act 15 provides legislative authorization for the remote conduct of notarial acts. Under existing law, an individual must personally appear before a notary public in order for notarial acts to be performed. On March 25, 2020, the Pennsylvania Department of State (“DOS”) issued a notice of “Limited Suspension of In-Person Regulatory Requirements for Notaries for Real Estate Transactions,” which suspended the personal appearance requirements. A copy of the notice may be found at https://www.dos.pa.gov/Documents/2020-03-25-Notaries-Inperson-limited-suspension.pdf. However, until the passage of Act 15 there was no legal authority for remote online notarization without physical presence before the notary.
Under Act 15, a notary, subject to certain conditions, may conduct notarial acts remotely by the use of approved communication technology, until 60 days after the termination or expiration of the Governor’s Coronavirus declaration. If a notary wishes to be able to perform remote notarizations, he or she must notify the DOS 30 days in advance that he or she will be performing notarial acts facilitated by communication technology, and identify the technology to be used. The current “ENotary Application” may be found at https://www.notaries.pa.gov/Pages/NotaryChangeApplication.aspx?AppType=3; however this application may be altered following the passage of Act 15.
Additional details of the remote notary portions of Act 15 will be detailed in a future Client Alert.
For additional information, please contact Blaine A. Lucas at blucas@babstcalland.com or 412-394-5657, Stephen L. Korbel at skorbel@babstcalland.com or 412-394-5627, or Robert Max Junker at rjunker@babstcalland.com or 412-773-8722.
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Transportation Safety Alert
(by Boyd Stephenson, Varun Shekhar, Jame Curry)
Babst Calland has updated this alert to capture new shipping paper guidance extended by the Pipeline and Hazardous Materials Safety Administration.
In response to the COVID-19 pandemic, U.S. Department of Transportation (DOT) agencies that regulate the surface transportation of hazardous materials (HazMat) have extended several forms of relief. The Pipeline and Hazardous Materials Safety Administration (PHMSA) has waived some HazMat training requirements, delayed some equipment recertifications, provided guidance for complying with existing shipping paper rules while practicing safe social distancing, and adopted a temporary enforcement policy for transporting alcohol-based sanitizer. The Federal Motor Carrier Safety Administration (FMCSA) and the Federal Railroad Administration (FRA) are implementing PHMSA’s waiver in their modes. FMCSA has also allowed States to extend the effective dates for commercial driver’s licenses (CDL) and commercial learner’s permits (CLP). Additionally, FRA has activated its emergency docket. FRA has not extended any hazardous materials-specific relief.
Hazardous Materials Shippers, Carriers, and Package Manufacturers
- Update: On April 10th, PHMSA issued a notice highlighting existing regulations that allow shipping papers to be transferred between parties while minimizing the risk of spreading COVID-19. PHMSA reminds regulated parties that no physical contact is required to exchange shipping papers. PHMSA suggests that shipping papers may transferred either electronically or by placing the physical copy on a table, stepping away while the shipping paper is signed, and then retrieving the signed shipping paper. The notice also reminds shippers that they may ask another person to sign on their behalf verbally, in writing, or through electronic authorization such as an email or text message. By following these requirements, individuals transporting HazMat should be able to comply with the regulations without special relief.
- On March 25th, PHMSA issued an updated policy declining to enforce recurrent training requirements under 49 C.F.R. § 172.704(c)(2) against HazMat employers unable to train employees due to COVID-19. Employers are still required to provide initial training to a new hazardous materials employee before the employee may perform regulated functions.
- On April 1st, PHMSA issued two surface transportation-related emergency special permits authorizing the filling and transportation of certain DOT specification cylinders up to 12 months after they are due for a periodic requalification during the COVID-19 emergency. PHMSA also authorized the transportation of certain cylinders overdue for retesting due to COVID-19 disruptions.
Truck Transportation
- On March 18th, FMCSA issued an expanded emergency declaration waiving certain provisions of Parts 390 through 399—most notably the hours of service requirements—for drivers providing direct assistance in support of relief efforts. Direct assistance includes transporting medical supplies, food, paper, and grocery products; precursors for those products; fuel; and equipment for constructing facilities to treat or house COVID-affected individuals. Direct assistance does not include routine commercial deliveries, including mixed loads with a nominal quantity of emergency relief items. The waiver doesn’t provid relief from the Hazardous Materials Regulations.
- On April 2nd, PHMSA provided relief to shippers of alcohol-based sanitizer by issuing a temporary enforcement policy for the highway mode. The temporary policy provides liberalized minimum requirements for transporting sanitizer products composed of up to 80 percent alcohol in packages up to 119 gallons. The policy adopts sliding requirements that increase with the size of the package. Sanitizer product shipments normally exempt from the HazMat Regulations will remain exempt. Update: On April 10th, PHMSA extended this relief until July 10th, and provided further relief, including accepting FDA labels as alternative markings for packages of up to eight gallons, provided they are visible during transportation. In addition, PHMSA released a presentation outlining what shipments qualify and how best to take advantage of the relief.
- On March 24th, FMCSA issued a wavier that permitted States to extend the validity of CDLs and CLPs expiring on or after March 1st. FMCSA’s waiver confirms that federal highway funds will not be withheld if states decide to extend licenses. The FMCSA wavier does not require states to extend CDL and CLPs, so each state may adopt its own policies. This could create a potentially confusing patchwork of different state license extensions that could affect interstate transportation.
- Update: On April 13th, FMCSA released FAQs for CDL and CLP extensions.
- So far, states haven’t extended CDLs and CLPs uniformly and some states have extended CDLs beyond June 30, 2020.
- On April 3, 2020, TSA issued a notice allowing states to extend the validity of a HazMat endorsement (HME) issued on or after March 1st up to 180 days. An HME is an extra certification issued with a CDL or CLP that allows the driver to transport placarded loads of HazMat. The Federal Motor Carrier Safety Laws require an HME applicant to pass a TSA background check. These background checks must be renewed every five years. Like the CDL and CLP extensions, this relief is permissive and states may not implement it uniformly.
Rail Transportation
- On March 23rd, FRA activated the Emergency Relief Docket (FRA-2020-0002) retroactive to March 13th, and placed the emergency relief provisions in 49 C.F.R. § 211.45 into effect. This allows railroads to submit a petition for emergency waiver of safety rules that FRA determines are directly related to an emergency event. FRA may grant a petition for waiver without prior public notice and comment if petitioners show that the request is in the public interest, not inconsistent with railroad safety and necessary to address an emergency. The Association of American Railroads and the American Short Line Regional Railroad Association submitted a joint petition for relief from regulations, including a request to relax timeframes for track inspections and mechanical and pre-departure inspections, but none related to hazardous materials transportation. FRA granted the petition and it is effective until May 24, 2020.
For more information on the various forms of COVID-19 HazMat relief extended by DOT agencies, contact Boyd A. Stephenson at bstephenson@babstcalland.com or 202.853.3452, Varun Shekhar at vshekhar@babstcalland.com or 202.975.1390, and James Curry at jcurry@babstcalland.com or 202.853.3455.
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Environmental Alert
(by Lisa Bruderly, Julie Domike and Gary Steinbauer)
U.S. Environmental Protection Agency’s March 26, 2020 temporary COVID-19 enforcement discretion policy establishes the steps regulated parties must take to qualify for enforcement protection for noncompliance caused by COVID-19 (“COVID-19 Policy” or “Policy”). Our previous Alert outlined the Policy’s scope, eligibility criteria, and expectations. In less than a month, EPA’s Policy has generated significant controversy, conflicting media reports, congressional inquiries, and now a federal lawsuit. Critiques of the Policy and EPA’s evolving messaging make clear that entities affected by COVID-19 should be thoughtful and strategic in their reliance on the potential relief provided by the Policy.
EPA’s Response to Backlash
In response to initial criticisms, EPA initiated several steps to explain its stance on environmental compliance and enforcement during the pandemic. On March 30, 2020, EPA issued a news release to correct “the record on reckless reporting” by certain media outlets and clarify that the Policy applies on a case-by-case basis. To quell legislative opposition, EPA sent members of Congress a letter on April 2, 2020, defending the Policy. EPA has also created a Frequently Asked Questions webpage answering several questions on the scope and application of the COVID-19 Policy.
Environmental Groups Sue EPA and State Attorneys General Weigh-In
At the same time, environmental groups and the states have voiced concerns related to the Policy. On April 1, 2020, a coalition of environmental groups, led by the Natural Resources Defense Council, petitioned EPA to promulgate an emergency rule requiring regulated parties to affirmatively report COVID-19-caused noncompliance and provide information similar to what EPA requires parties to document under the Policy. On April 16, 2020, the coalition filed a lawsuit in the U.S. District Court for the Southern District of New York, requesting that the court order EPA to respond to the petition immediately and alleging that the Policy deprives the public of compliance-related information and raises environmental justice issues.
States have also entered the fray, vowing to hold regulated parties accountable for COVID-19-caused noncompliance. In an April 15, 2020 letter, attorneys general from 14 states, including Pennsylvania, urged EPA to rescind the Policy, claiming that the Policy ignores the connection between air pollution and respiratory/cardiovascular conditions with increased risk of serious harm for those who contract COVID-19. The letter follows correspondence sent by California’s attorney general to EPA on April 9, 2020.
Thoughtful Consideration and Documentation Are Necessary for Protection under EPA’s Policy
EPA’s post-Policy communications emphasize that EPA continues to enforce federal environmental laws, and regulated entities should remain vigilant in meeting their compliance obligations to the extent reasonably practical. They also preview EPA’s evolving consideration of enforcement discretion and reinforce the need for regulated entities to develop a sound strategy before relying on the Policy. The following points should be considered:
- Coverage under the Policy is not guaranteed. EPA will make case-by-case determinations on whether the circumstances of noncompliance meet the criteria of the Policy. Coverage under Policy also requires that regulated entities notify the appropriate implementing authority of COVID-19-caused noncompliance that may cause an acute risk or imminent threat to human health or the environment, and failures of treatment technology that may cause exceedances of applicable limits or thresholds. Consequently, regulated entities may be forced to self-disclose potential noncompliance to EPA that it later determines is not covered by the Policy.
- Coverage is not confirmed immediately. EPA did not commit to a time frame for making coverage determinations under the Policy. The Policy also does not address whether these individualized determinations will be made by EPA Headquarters or its Regional offices. Regulated entities will not know whether EPA agrees that they qualify for relief under the Policy for an unspecified time, potentially months or years after the Policy is lifted.
- Coverage determinations will depend heavily on the extent of documentation. The necessary documentation to obtain Policy coverage varies based on the complexity of the facility and the circumstances of noncompliance. There is no one-size-fits-all approach, and EPA expects the regulated community to “fully and completely explain and support the situation presented by COVID-19 public health emergency-caused noncompliance and the facility’s response to it.” Regulated entities will need to thoughtfully consider the eligibility criteria when preparing documentation, weighing the goal of obtaining Policy coverage with the possibility that this information may become subject to public review.
We note that, when considering the Policy, regulated entities must keep in mind that it applies only to EPA’s discretion to enforce federal environmental laws. States, including Pennsylvania, have developed their own COVID-19 policies, some of which differ significantly from EPA’s.
Babst Calland’s environmental attorneys can guide you through the complexities of EPA’s Policy and the Coronavirus environmental regulatory landscape and assist you with related strategic decisions. For more information, please contact Lisa M. Bruderly at 724-910-1117 or lbruderly@babstcalland.com, Julie R. Domike at 301-518-0972 or jdomike@babstcalland.com, or Gary E. Steinbauer at 419-410-4286 or gsteinbauer@babstcalland.com.
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Emerging Technologies Profile
Why do you have two jobs? I’ve got the best of both worlds – in business and in public service. I love being an attorney because it challenges me every day to help clients achieve their business goals. My other job is being a member of the West Virginia House of Delegates. After having worked in Washington, D.C. serving on the White House advance team and as a staff member in the Department of Defense, I attended law school to prepare me for both worlds.
What do you do at Babst Calland? I represent publicly traded and privately held clients in mergers, acquisitions and divestitures, as well as business structuring, governance, commercial contracts, and real estate transactions.
When you are not at Babst Calland, you can be found… at the State Capitol in Charleston, West Virginia performing my legislative duties. I am passionate about West Virginia and the growing opportunities to reinvent ourselves in a way that focuses on innovation, entrepreneurship, and technological growth for the future. Helping West Virginia to expand in the technology space is one of my roles as co-chair of the Tech Caucus in West Virginia’s House.
Personally, what fulfills you most? My family and colleagues at work. I’m so blessed to have an opportunity to live, work, and raise a family in a place I love.
Tell us something about yourself that people may not know. The A.A. in my given name is from my late grandfather – Arch Alfred Moore, Jr., former Governor of West Virginia. My Mom – Shelley Moore Capito – is a U.S. Senator from West Virginia. I also play solitaire, with real cards, in my free time.
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The Legal Intelligencer
(by Krista-Ann Staley)
The Pennsylvania Commonwealth Court, the statewide intermediate appellate court that hears and decides land use appeals, took a temporary hiatus from issuing opinions while the Unified Judicial System of Pennsylvania adapted to the COVID-19 pandemic. During the hiatus, the Commonwealth Court: closed to the public for all nonessential functions through April 30, in accordance with a series of orders from the Pennsylvania Supreme Court; cancelled its March argument session in Harrisburg, indicating that it would decide all cases listed for argument on briefs unless a party requested an oral argument; extended certain filing deadlines under the Pennsylvania Rules of Appellate Procedure and deadlines for briefs, petitions, motions and applications for pending matters for 30 days; cancelled its April argument session in Harrisburg; relocated its May argument session from Pittsburgh to Harrisburg; and announced the May argument list. The Commonwealth Court then resumed posting opinions April 7, and is expected to work through a backlog of cases while its operations remain limited.
Prior to its hiatus, the Commonwealth Court released several land use decisions, two of which addressed statutory interpretation issues through subjects that rarely come before the court: zoning officer preliminary opinions and transferrable development rights.
In Friends of Lackawanna v. Dunmore Borough Zoning Hearing Board, No. 1586 C.D. 2018 (Pa. Commw. Ct. Feb. 18, 2020), the court addressed the “preliminary opinion” procedure set forth in the Pennsylvania Municipalities Planning Code, 53 P.S. §§10101, et seq. (the MPC). That process, added as Section 10916.2 of the MPC by the act of Dec. 21, 1988, P.L. 1329, serves to advance the timeline for a substantive validity challenge and allow a landowner to “secure assurance that the ordinance … is free from challenge” before filing a land use application. Without a preliminary opinion, an objector can only bring a substantive validity challenge after an application has been filed, when an applicant may have already invested significant time and money in preparing required plans and studies. Instead, the preliminary opinion process allows a landowner to start a timeline for a substantive validity challenge without the expense and time of developing and filing a full land use application.
The court’s recent decision in Friends of Lackawanna addresses a request by Keystone Sanitary Landfill,(Keystone) for a preliminary opinion under Section 916.2. Keystone requested the zoning officer’s opinion as to whether its planned landfill expansion complied with the zoning ordinance. Specifically, Keystone sought a preliminary opinion as to whether the zoning district’s 50-foot building height limit applied to its landfill expansion, planned to reach 1,722 feet in height. The zoning officer issued a preliminary opinion stating that the terms “building” and “building height” pertain to structures with a roof supported by columns or walls. Because the landfill had none of these features, the zoning officer concluded that the height requirement for buildings did not apply.
Friends of Lackawanna and several individuals (collectively, the objectors) appealed the preliminary opinion to the zoning hearing board. Following six days of hearings the board concluded that the objectors lacked standing to file the appeal. The board also ruled on the merits, agreeing with the zoning officer’s preliminary opinion that the landfill was not subject to the height limit because it was not a “structure.” Even if the landfill were a structure, the board held, the height restriction still would not apply because it was impossible to use the ordinance’s roof-based measurement methodology for the landfill.
The trial court affirmed the board and the objectors appealed to the Commonwealth Court. The objectors challenged the merits of the preliminary opinion, arguing the board abused its discretion and erred in holding the landfill is not a structure and the landfill is not subject to the height limit. Keystone argued the zoning hearing board lacked jurisdiction to review the zoning officer’s preliminary opinion.
The court agreed that the board lacked jurisdiction over the appeal and rejected the objectors’ arguments. First, the court rejected the objectors’ position that the board’s jurisdiction over “appeals from the zoning officer’s determination under Section 916.2” allowed the board to consider the merits of the preliminary opinion. The court relied on its opinion in Susquehanna Rheems Holdings v. West Donegal Township Zoning Hearing Board, No. 1394 C.D. 2017 (Pa. Commw. Ct. July 23, 2018) (unreported), petition for allowance of appeal denied, 207 A.3d 906 (Pa. 2019), where it held an appeal from a preliminary opinion under Section 916.2 can only raise a substantive validity challenge to the zoning ordinance. The objectors brought no such challenge in Friends of Lackawanna.
Second, the court rejected the objectors’ argument that the board could consider the merits of the preliminary opinion under Section 909.1(a)(3), which gives the board jurisdiction to hear and render final adjudications on “appeals from the determination of the zoning officer, including, but not limited to, the granting or denial of any permit … ” The court noted that the objectors did not file an appeal under Section 909.1(a)(3). It also found that a Section 916.2 preliminary opinion alone is not a “determination” for purposes of Section 909.1(a)(3). Here, Keystone had not filed a development plan or zoning application and did not secure any vested right; the opinion had no bearing on any application that Keystone may eventually file, if required. Therefore, the preliminary opinion was not a “determination” subject to appeal on the merits.
Note that the Friends of Lackawanna decision is distinguishable the court’s decision in Atul K. Amin Family Limited Partnership II v. Bethlehem Township Zoning Hearing Board, No. 921 C.D. 2010 (Pa. Commw. Ct. Dec. 10, 2010) (unreported), based upon specific ordinance language. In Atul K. Amin Family Limited Partnership II the Bethlehem Township zoning ordinance gave the zoning hearing board jurisdiction to hear and decide appeals alleging that the zoning officer “misinterpreted or misapplied any valid provision of the ordinance.” This language extended the board’s jurisdiction beyond the MPC language regarding appeals from “determinations,” as examined in Friends of Lackawanna. Based upon the explicit reference to misinterpretation and misapplication, the court held that the Bethlehem Township zoning hearing board had jurisdiction to consider the merits of a preliminary opinion and remanded the case.
The court addressed transferrable development rights, another infrequent subject of land use appeals, in Geerling Florist v. Board of Supervisors of Warrington Township, No. 470 C.D. 2018 (Pa. Commw. Ct. Feb. 12, 2020). While implementation is far from widespread, the MPC does authorize land use ordinances in Pennsylvania to incorporate transferrable development rights (TDRs). Generally, TDR programs establish credit systems that allow developers to exchange development rights related to land in preservation areas for increased project intensity on land in development areas. The tool can serve a variety of land preservation goals, including aggregation and protection of agricultural areas, natural resources, and open space.
The issue in Geerling Florist arose from the TDR program set forth in the Warrington Township (township) zoning ordinance, which permitted the use of TDRs pursuant to conditional use approval. Geerling Florist (Geerling) applied to the township for TDR approval related to a 49 single family home development in the Township’s RA-Residential Agricultural Zoning District (RA District). Geerling and the township agreed that the project would require Geerling to use TDRs from another property. However, they disagreed as to the number of credits required.
Geerling’s application to the Township stated that the 49-home project would require the developer to surrender 19 TRDs. It reached the 19 TDR result using a 30-unit cluster development plan as the “baseline” for the number of homes permitted on the property. The township board of supervisors approved the 30-unit plan, under the conditions that the subject property had to preserve 83% of the site as open space in perpetuity and the project had to preserve the “maximum amount of agricultural soils on the property” in accordance with the requirements of the cluster development provision in the zoning ordinance. The township board next considered Geerling’s 49-home TDR development plan and, after further hearings, decided it required Geerling to surrender 35 TDRs, not the 19 proposed by the developer. The township reached the 35 TDR result using the 14 homes permitted by-right in the RA District as the “baseline,” rather than the 30-units available through the cluster development process, because the 49-home plan did not meet the requirements for a cluster development.
On appeal by Geerling, the trial court held that the ordinance was ambiguous because it did not address which baseline (i.e., the number of units available in a cluster development or the number of units available under the general district requirement) applies for purposes of calculating TDRs. Pursuant to the MPC’s directive to interpret ambiguous ordinance terms in the light most favorable to the applicant, the trial court used the cluster development as the baseline for determining the number of required TDRs.
The township appealed to the Commonwealth Court, which found the ordinance was not ambiguous and overturned the trial court’s decision. According to the Commonwealth Court, the different interpretations of the zoning ordinance arose from an omission, rather than competing interpretations of the terms. Because the ordinance was not ambiguous, the landowner was not entitled to the MPC’s favorable interpretation rule. Rather, the court proceeded to apply standard rules of statutory interpretation to the township’s decision. The court ultimately found no error or abuse of discretion in the township board’s interpretation.
The Commonwealth Court will continue to post decisions through the COVID-19 outbreak and asks counsel and parties to monitor individual case dockets and the court’s website for updates.
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Reprinted with permission from the April 16, 2020 edition of The Legal Intelligencer© 2020 ALM Media Properties, LLC. All rights reserved.
Environmental Alert
(by Lindsay Howard and Matthew Wood)
The COVID-19 pandemic continues to disrupt nearly all aspects of American life and business, including ongoing response activities being conducted under the authority of the U.S. Environmental Protection Agency (EPA). In connection with these impacts, on April 10, 2020, EPA published a memorandum entitled, Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19 (“EPA’s COVID-19 Field Work Guidance” or “Guidance”). The Guidance offers guidelines, specific factors, and examples EPA Regions should consider in their decision-making processes to continue, reduce, or suspend on-site work. Driving these case-by-case decisions are EPA’s two main priorities: (1) protecting the health and safety of the public, as well as EPA’s staff and cleanup partners; and (2) maintaining EPA’s ability to prevent and respond to environmental emergencies. This Alert addresses questions regarding EPA’s guidelines and decision-making under the Guidance.
To What Sites Does EPA’s COVID-19 Field Work Guidance Apply?
EPA’s COVID-19 Field Work Guidance applies to ongoing and emergency response actions conducted at sites across the United States under multiple federal programs, including Superfund, RCRA, and TSCA, where EPA is the lead agency or has direct oversight of or responsibility for the work being performed. EPA acknowledges that any number of parties may actually be performing the work covered by its Guidance, including EPA, states, tribes, other federal agencies, or potentially responsible parties (PRPs). Although the Guidance does not apply directly to states, EPA specifies that Regions should share the Guidance with states and assist states conducting state-lead RCRA cleanups.
In What Types of Situations Will EPA Regions Reduce or Suspend Response Actions?
The Guidance identifies multiple situations that have informed (or may inform) Regions’ decisions to reduce or suspend response actions. Among these are where state, tribal, or local officials request a suspension of the response action, where a site worker has tested positive for COVID-19, or where field personnel are not able to work due to travel restrictions or medical quarantine. The Guidance offers other examples and indicates that the list is not exhaustive, i.e., that similar situations have supported or may support a decision to reduce or suspend on-site field work.
What Factors will Regions Consider When Deciding to Continue, Reduce, or Suspend On-Site Field Work?
EPA’s COVID-19 Field Work Guidance identifies both general guidelines and site-specific factors Regions should consider in making site field work decisions.
- General Guidelines
Regions should evaluate (and periodically re-evaluate) their respective ongoing response work in light of potential COVID-19 impacts and restrictions. Such actions include considering applicable federal, state, tribal, or local health declarations in determining whether to continue work or secure a site until the declaration is resolved. In the absence of such declarations, EPA instructs Regions to consider other relevant factors, such as the safety and availability of work crews and staff, the critical nature of the work, and logistical challenges. Where work starts or continues, Regions must review and revise, as necessary, Health and Safety Plans to account for COVID-19 related guidelines. If work is halted, Regions are advised to monitor site conditions and plan to safely resume work as soon as appropriate.
- Site-Specific Factors
The Guidance lists three categories of site-specific factors that Regions should consider in determining whether response actions should continue, be reduced, or paused. The first is whether a failure to continue a response action “would likely pose an imminent and substantial endangerment to human health or the environment, and whether it is practical to continue such actions.” These types of scenarios generally include: (1) emergency response and immediate threats (e.g., Time Critical Removal Actions that address an imminent threat to public health and the environment); (2) an ongoing, or threat of, direct human exposures (e.g., on-site exposures to contaminants); and (3) prevention of exposures that pose an imminent threat to public health, welfare, and the environment (e.g., preventing groundwater plume expansion or releases to water bodies that could adversely affect drinking water sources).The second category of factors that Regions should consider involves situations where “maintaining any response actions would lead to a reduction in human health risk/exposure within the ensuing six months.” Examples provided by EPA include activities such as continuing vapor intrusion investigations or residential site work involving current exposures to residents.The third category advises Regions to evaluate whether situations “that would not provide near-term reduction in human health risk” may be considered for delay, suspension, or rescheduling in coordination with applicable stakeholders. Examples of these types of activities include periodic monitoring, certain types of sampling, and active remediation of stable conditions. For each of the three categories, the Guidance provides additional examples and indicates that similar situations may inform Regions’ decisions to continue, reduce, or pause response actions.
How Does the Guidance Apply to Potentially Responsible Parties Performing On-Site Work?
The Guidance directs PRPs who believe the COVID-19 pandemic will delay compliance obligations to refer to their respective enforcement instruments for provisions regarding, for example, requesting schedule adjustments or invoking a force majeure provision, and providing applicable notices. EPA cautions that any such modifications or force majeure determinations will be made on a case-by-case basis and will consider site-specific facts, including the type of work purportedly affected. Although the Guidance indicates that EPA will make such decisions promptly, EPA nonetheless encourages performing parties to communicate regularly with their project managers concerning the status of their sites, including regarding anticipated COVID-19-related challenges.
How does EPA’s Guidance Affect Non-Field Site Work?
EPA expects non-field work such as report preparation, modeling, and negotiations to continue to the extent these activities can be conducted remotely. EPA recognizes, however, that the Coronavirus pandemic may also impact off-site/non-field supporting operations (e.g., laboratories) and directs any party that believes its performance obligations may be delayed by such impacts to consult relevant provisions of its applicable enforcement instrument.
Babst Calland’s environmental attorneys are available to assist you with addressing or responding to any COVID-19-related impacts under the Guidance and other applicable policies. For more information, please contact Lindsay P. Howard at (412) 394-5444 or lhoward@babstcalland.com, Matthew C. Wood at (412) 394-6583 or mwood@babstcalland.com, or any of our other remediation attorneys.
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Transportation Safety Alert
(by Boyd Stephenson, Varun Shekhar, Jame Curry)
Babst Calland has updated this alert to capture new HazMat background check relief extended by the Transportation Security Administration (TSA).
In response to the COVID-19 pandemic, U.S. Department of Transportation (DOT) agencies that regulate the surface transportation of hazardous materials (HazMat) have extended several forms of relief. The Pipeline and Hazardous Materials Safety Administration (PHMSA) has waived some HazMat training requirements and delayed some equipment recertifications. The Federal Motor Carrier Safety Administration (FMCSA) and the Federal Railroad Administration (FRA) are implementing PHMSA’s waiver in their modes. FMCSA has also allowed states to extend the effective dates for commercial driver’s licenses (CDL) and commercial learner’s permits (CLP). Additionally, FRA has activated its emergency docket. FRA has not extended any hazardous materials-specific relief. Finally, the Transportation Security Administration (TSA) is allowing states to extend HazMat endorsements (HME).
Hazardous Materials Shippers, Carriers, and Package Manufacturers
- On March 25th, PHMSA issued an updated policy declining to enforce recurrent training requirements under 49 C.F.R. § 172.704(c)(2) against HazMat employers unable to train employees due to COVID-19. Employers are still required to provide initial training to a new hazardous materials employee before the employee may perform regulated functions.
- On April 1st, PHMSA issued two surface transportation-related emergency special permits authorizing the filling and transportation of certain DOT specification cylinders up to 12 months after they are due for a periodic requalification during the COVID-19 emergency. PHMSA also authorized the transportation of certain cylinders overdue for retesting due to COVID-19 disruptions.
Truck Transportation
- On March 18th, FMCSA issued an expanded emergency declaration waiving certain provisions of Parts 390 through 399—most notably the hours of service requirements—for drivers providing direct assistance in support of relief efforts. Direct assistance includes transporting medical supplies, food, paper, and grocery products; precursors for those products; fuel; and equipment for constructing facilities to treat or house COVID-affected individuals. Direct assistance does not include routine commercial deliveries, including mixed loads with a nominal quantity of emergency relief items. The waiver doesn’t provide relief from the Hazardous Materials Regulations.
- On April 2nd, PHMSA provided relief to shippers of alcohol-based sanitizer by issuing a temporary enforcement policy for the highway mode. The temporary policy provides liberalized minimum requirements for transporting sanitizer products composed of up to 80 percent alcohol in packages up to 119 gallons. The policy adopts sliding requirements that increase with the size of the package. Sanitizer product shipments normally exempt from the HMRs will remain exempt.
- On March 24th, FMCSA issued a wavier that permitted States to extend the validity of CDLs and CLPs expiring on or after March 1st. FMCSA’s waiver confirms that federal highway funds will not be withheld if states decide to extend licenses. The FMCSA wavier does not require states to extend CDL and CLPs, so each state may adopt its own policies. This could create a potentially confusing patchwork of different state license extensions that could affect interstate transportation.
- So far, states haven’t extended CDLs and CLPs uniformly and some states have extended CDLs beyond the June 30, 2020.
- A HazMat endorsement (HME) is an extra certification issued with a CDL or CLP that allows the driver to transport placarded loads of HazMat. The Federal Motor Carrier Safety Laws require an HME applicant to pass a Transportation Security Administration (TSA) background check. These background checks must be renewed every five years. TSA has not extended the validity of background checks required to obtain or renew an HME, so it appears that the FMCSA waiver may not extend to expiring HMEs.
- Update: On April 3, 2020, TSA issued a notice allowing states to extend the validity of a HazMat endorsement (HME) issued on or after March 1st up to 180 days. An HME is an extra certification issued with a CDL or CLP that allows the driver to transport placarded loads of HazMat. The Federal Motor Carrier Safety Laws require an HME applicant to pass a TSA background check. These background checks must be renewed every 5 years. Like the CDL and CLP extensions, this relief is permissive and states may not implement it uniformly.
Rail Transportation
- On March 23rd, FRA activated the Emergency Relief Docket (FRA-2020-0002) retroactive to March 13th, and placed the emergency relief provisions in 49 C.F.R. § 211.45 into effect. This allows railroads to submit a petition for emergency waiver of safety rules that FRA determines are directly related to an emergency event. FRA may grant a petition for waiver without prior public notice and comment if petitioners show that the request is in the public interest, not inconsistent with railroad safety and necessary to address an emergency. The Association of American Railroads and the American Short Line Regional Railroad Association submitted a joint petition for relief from regulations, including a request to relax timeframes for track inspections and mechanical and pre-departure inspections, but none related to hazardous materials transportation. FRA granted the petition and it is effective until May 24, 2020.
For more information on the various forms of COVID-19 HazMat relief, contact Boyd A. Stephenson at bstephenson@babstcalland.com or 202.853.3452, Varun Shekhar at vshekhar@babstcalland.com or 202.975.1390, and James Curry at jcurry@babstcalland.com or 202.853.3455.
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Transportation Safety Alert
(by Boyd Stephenson, Varun Shekhar, Jame Curry)
In response to the COVID-19 pandemic, U.S. Department of Transportation (DOT) agencies that regulate the surface transportation of hazardous materials (HazMat) have extended several forms of relief. The Pipeline and Hazardous Materials Safety Administration (PHMSA) has waived some HazMat training requirements and delayed some equipment recertifications. The Federal Motor Carrier Safety Administration (FMCSA) and the Federal Railroad Administration (FRA) are implementing PHMSA’s waiver in their modes. FMCSA has also allowed states to extend the effective dates for commercial driver’s licenses (CDL) and commercial learner’s permits (CLP). Additionally, FRA has activated its emergency docket. FRA has not extended any hazardous materials-specific relief.
Hazardous Materials Shippers, Carriers, and Package Manufacturers
- On March 25th, PHMSA issued an updated policy declining to enforce recurrent training requirements under 49 C.F.R. § 172.704(c)(2) against HazMat employers unable to train employees due to COVID-19. Employers are still required to provide initial training to a new hazardous materials employee before the employee may perform regulated functions.
- On April 1st, PHMSA issued two surface transportation-related emergency special permits authorizing the filling and transportation of certain DOT specification cylinders up to 12 months after they are due for a periodic requalification during the COVID-19 emergency. PHMSA also authorized the transportation of certain cylinders overdue for retesting due to COVID-19 disruptions.
Truck Transportation
- On March 18th, FMCSA issued an expanded emergency declaration waiving certain provisions of Parts 390 through 399—most notably the hours of service requirements—for drivers providing direct assistance in support of relief efforts. Direct assistance includes transporting medical supplies, food, paper, and grocery products; precursors for those products; fuel; and equipment for constructing facilities to treat or house COVID-affected individuals. Direct assistance does not include routine commercial deliveries, including mixed loads with a nominal quantity of emergency relief items. The waiver doesn’t provide relief from the Hazardous Materials Regulations.
- On April 2nd, PHMSA provided relief to shippers of alcohol-based sanitizer by issuing a temporary enforcement policy for the highway mode. The temporary policy provides liberalized minimum requirements for transporting sanitizer products composed of up to 80 percent alcohol in packages up to 119 gallons. The policy adopts slidingrequirements that increase with the size of the package. Sanitizer product shipments normally exempt from the HMRs will remain exempt.
- On March 24th, FMCSA issued a wavier that permitted States to extend the validity of CDLs and CLPs expiring on or after March 1st. FMCSA’s waiver confirms that federal highway funds will not be withheld if states decide to extend licenses. The FMCSA wavier does not require states to extend CDL and CLPs, so each state may adopt its own policies. This could create a potentially confusing patchwork of different state license extensions that could affect interstate transportation.
- So far, states haven’t extended CDLs and CLPs uniformly and some states have extended CDLs beyond the June 30th, 2020.
- A HazMat endorsement (HME) is an extra certification issued with a CDL or CLP that allows the driver to transport placarded loads of HazMat. The Federal Motor Carrier Safety Laws require an HME applicant to pass a Transportation Security Administration (TSA) background check. These background checks must be renewed every five years. TSA has not extended the validity of background checks required to obtain or renew an HME, so it appears that the FMCSA waiver may not extend to expiring HMEs.
- TSA-contractor HME background check enrollment centers remain open in the 42 states that use the TSA program. Florida, Kentucky, Maryland, New York, Pennsylvania, Texas, Virginia, and Wisconsin do not utilize the TSA-contractor and have so far not provided background check guidance. It is unclear whether drivers in these states will be able extend expiring HMEs.
Rail Transportation
- On March 23rd, FRA activated the Emergency Relief Docket (FRA-2020-0002) retroactive to March 13th, and placed the emergency relief provisions in 49 C.F.R. § 211.45 into effect. This allows railroads to submit a petition for emergency waiver of safety rules that FRA determines are directly related to an emergency event. FRA may grant a petition for waiver without prior public notice and comment if petitioners show that the request is in the public interest, not inconsistent with railroad safety and necessary to address an emergency. The Association of American Railroads and the American Short Line Regional Railroad Association submitted a joint petition for relief from regulations, including a request to relax timeframes for track inspections and mechanical and pre-departure inspections, but none related to hazardous materials transportation. FRA granted the petition and it is effective until May 24, 2020.
For more information on the various forms of COVID-19 HazMat relief extended by DOT agencies, contact Boyd A. Stephenson at bstephenson@babstcalland.com or 202.853.3452, Varun Shekhar at vshekhar@babstcalland.com or 202.975.1390, and James Curry at jcurry@babstcalland.com or 202.853.3455.
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Environmental Alert
(by Lisa Bruderly and Daniel Hido)
As businesses in Pennsylvania struggle to deal with significant disruptions and challenges to their operations caused by the COVID-19 pandemic, environmental agencies have recognized the challenges that the pandemic presents to achieving compliance with environmental obligations. For example, on March 26, 2020, the U.S. Environmental Protection Agency (USEPA) issued a temporary policy for excusing COVID-19-related noncompliance (see Babst Calland’s March 30, 2020 Environmental Alert for further details). Similarly, on March 31, 2020, the Pennsylvania Department of Environmental Protection (PADEP) issued an Alert announcing that it would consider requests to temporarily suspend certain regulatory, permit, and/or other legal requirements due to COVID-19. It also provided the form needed to make such a request. This announcement reflects a thought change from PADEP’s previous assertion that COVID-19’s impact on businesses in Pennsylvania would not excuse compliance with environmental laws, stating that “[a]ll permittees and operators are expected to meet all terms and conditions of their environmental permits, including conditions applicable to cessation of operations.”
What is Required to Request a Temporary Suspension?
Unlike USEPA’s temporary policy, which does not require regulated entities to submit documentation regarding an inability to meet routine compliance obligations, PADEP is requiring submittal of the request form. While PADEP did not elaborate on how it will review requests for suspension, it will generally evaluate (1) the reasons for the request in light of the COVID-19 pandemic, and (2) the risk of harm to the environment or public health if the request is or is not granted.
Importantly, it will not be enough for entities to show that COVID-19 has restricted their ability to comply with regulatory, permit, or other legal requirements; entities must demonstrate that strict compliance would prevent, hinder, or delay necessary action in coping with the COVID-19 emergency. This standard reflects the language of Governor Tom Wolf’s March 6, 2020 Proclamation of Disaster Emergency and 35 Pa. C.S. § 7301, which PADEP cited as authority for granting temporary suspensions.
The two-page request form asks 16 questions regarding topics including the following:
- Alternate compliance options that have been explored;
- Length of time the entity expects to be unable to comply and the necessary circumstances to return to compliance;
- Extent of risk of additional pollution and/or how such increased pollution will be avoided;
- Public health and safety benefits from granting the suspension; and
- Negative consequences to the entity’s operations and the Commonwealth’s response to the COVID-19 emergency if the suspension is not granted.
- Some of the more interesting, and potentially controversial, questions asked by PADEP include the following:
- Do you believe cost gouging or supply hoarding is negatively affecting your ability to comply?
- Would you possess a unique advantage over your competitors, or others in the same industry, if a suspension is granted?
It is not clear whether PADEP will be receptive to entities requesting suspensions from settlement agreement requirements using the request form, or whether PADEP will expect entities to rely primarily on the force majeure provisions typically provided in those agreements. However, the request form does allow entities to request suspension of regulatory, permit, “or other requirement(s),” indicating that entities may be able to request suspension of settlement agreement requirements using this recently-introduced process.
When are suspensions expected to be granted?
PADEP has not announced its expected time frame for responding to the likely large number of requests for suspension. PADEP also did not explain how it will evaluate and balance the factors outlined in the request form. However, in multiple places the form emphasizes that the entity should provide detailed and specific responses. PADEP stated that suspensions will initially not be granted beyond June 30, 2020.
We note that this procedure only applies to requests for suspension of state regulatory or permit requirements and requirements under federal programs delegated to Pennsylvania. Entities seeking relief from federal requirements, under only federal authority, are to contact EPA Region III and consult USEPA’s March 26, 2020 policy.
Additional Guidance on Conducting Chapter 102 Earth Disturbance Activities
At the same time as providing the temporary suspension request form, PADEP also issued Coronavirus-related guidance for permittees and operators conducting permitted earth disturbance activities under Chapter 102 of the Pennsylvania regulations. Entities that are considered “life-sustaining businesses” under Governor Wolf’s March 19, 2020 Order, which required all “non-life-sustaining businesses” to close their physical locations, may continue to conduct earth disturbance activities to the extent such activities are in support of the operation of the life-sustaining business. However, “non-life-sustaining businesses” must cease earth disturbance activities. Upon doing so, the entity must implement temporary or permanent stabilization measures as required by the permit and applicable regulatory requirements. Once required stabilization measures are implemented, the entity is relieved from requirements to perform weekly routine inspections, but still must conduct other inspections required by the permit, such as Post-Storm Event and Corrective Action inspections. PADEP stated that it considers such inspections to be critical operational functions and not in violation of the March 19th Order.
Babst Calland’s environmental attorneys are available to help you develop requests for temporary suspensions and guide you through the process. For more information, please contact Lisa M. Bruderly at 412.394.6495 or lbruderly@babstcalland.com or Daniel P. Hido at 412.394.6580 or dhido@babstcalland.com.
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Client Alert
(by Moore Capito, Christian Farmakis and Andrew Terranova)
On April 2, 2020, the Small Business Administration (the SBA) published an Interim Final Rule regarding the Paycheck Protection Program (PPP Loan), enacted as part of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Below are critical points that the SBA has clarified in the published guidance. The Interim Final Rule can be found here.
What is the interest rate of the loan?
The SBA has advised that the interest rate of the loan has been increased from a 0.5 percent fixed rate to a 1 percent fixed rate.
Do independent contractors count as employees for purposes of PPP Loan calculations or PPP Loan forgiveness?
No. Independent contractors have the ability to apply for their own PPP Loans, so they do not count for purposes of a borrower’s PPP Loan calculations or forgiveness.
How can PPP Loan proceeds be used?
The proceeds of a PPP loan are to be used for:
- payroll costs (as defined in the Act and in 2.f.);
- costs related to the continuation of group health care benefits during periods of paid sick, medical, or family leave, and insurance premiums;
- mortgage interest payments (but not mortgage prepayments or principal payments);
- rent payments;
- utility payments;
- interest payments on any other debt obligations that were incurred before February 15, 2020; and/or
- refinancing an SBA EIDL loan made between January 31, 2020 and April 3, 2020.
If you received an SBA EIDL loan from January 31, 2020 through April 3, 2020, you can apply for a PPP Loan. If your EIDL loan was not used for payroll costs, it does not affect your eligibility for a PPP Loan. If your EIDL loan was used for payroll costs, your PPP Loan must be used to refinance your EIDL loan. Proceeds from any advance up to $10,000 on the EIDL loan will be deducted from the loan forgiveness amount on the PPP Loan. However, at least 75 % of the PPP Loan proceeds shall be used for payroll costs. For purposes of determining the percentage of use of proceeds for payroll costs, the amount of any EIDL refinanced will be included. For purposes of loan forgiveness, however, the borrower will have to document the proceeds used for payroll costs in order to determine the amount of forgiveness.
How much of the loan is forgiven?
While the full principal amount of the loan and any accrued interest may be forgiven, not more than 25 percent of the loan forgiveness amount may be attributable to non-payroll costs. The SBA has determined that the non-payroll portion of the forgivable loan amount should be limited to effectuate the core purpose of the CARES Act and ensure finite program resources are devoted primarily to payroll.
Has the PPP Loan application been updated?
Yes. An applicant must submit SBA Form 2483 (Paycheck Protection Program Application Form), which can be accessed here.
What certifications need to be made on the PPP Loan application?
An authorized representative of the applicant must certify in good faith to all of the below:
- The applicant was in operation on February 15, 2020 and had employees for whom it paid salaries and payroll taxes or paid independent contractors, as reported on a Form 1099-MISC.
- Current economic uncertainty makes this loan request necessary to support the ongoing operations of the applicant.
- The funds will be used to retain workers and maintain payroll or make mortgage interest payments, lease payments, and utility payments; I understand that if the funds are knowingly used for unauthorized purposes, the federal government may hold me legally liable such as for charges or fraud. As explained above, not more than 25 % of loan proceeds may be used for non-payroll costs.
- Documentation verifying the number of full-time equivalent employees on payroll as well as the dollar amounts of payroll costs, covered mortgage interest payments, covered rent payments, and covered utilities for the eight-week period following this loan will be provided to the lender.
- Loan forgiveness will be provided for the sum of documented payroll costs, covered mortgage interest payments, covered rent payments, and covered utilities. As explained above, not more than 25 % of the forgiven amount may be for non-payroll costs.
- During the period beginning on February 15, 2020 and ending on December 31, 2020, the applicant has not and will not receive another loan under this program.
- I further certify that the information provided in this application and the information provided in all supporting documents and forms is true and accurate in all material respects. I understand that knowingly making a false statement to obtain a guaranteed loan from SBA is punishable under the law, including under 18 USC 1001 and 3571 by imprisonment of not more than five years and/or a fine of up to $250,000; under 15 USC 645 by imprisonment of not more than two years and/or a fine of not more than $5,000; and, if submitted to a federally insured institution, under 18 USC 1014 by imprisonment of not more than 30 years and/or a fine of not more than $1,000,000.
- I acknowledge that the lender will confirm the eligible loan amount using tax documents I have submitted. I affirm that these tax documents are identical to those submitted to the Internal Revenue Service. I also understand, acknowledge, and agree that the Lender can share the tax information with SBA’s authorized representatives, including authorized representatives of the SBA Office of Inspector General, for the purpose of compliance with SBA Loan Program Requirements and all SBA reviews.
PPP Loans are being offered on a first-come, first-served basis.
Applications for small businesses and sole proprietorships are being accepted beginning April 3, 2020, and independent contractors and self-employed individuals can begin submitting applications on Friday, April 10, 2020.
For more information on the PPP Loan or for assistance in applying for the program, please contact Babst Calland Attorneys Moore Capito at 304.552.8986 or mcapito@babstcalland.com, Christian Farmakis at 412.394.5642 or cfarmakis@babstcalland.com or Andrew Terranova at 412.773.8717 or aterranova@babstcalland.com.
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Client Alert
(by Moore Capito, Christian Farmakis and Andrew Terranova)
Earlier today the U.S. Treasury Department (the Department) published additional information on the Paycheck Protection Program (PPP Loan), enacted as part of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Below are critical points that the Department has clarified in the published guidance.
When can I apply?
- Small businesses and sole proprietorships can begin submitting applications on Friday, April 3, 2020
- Independent contractors and self-employed individuals can begin submitting applications on Friday, April 10, 2020.
How much money can be borrowed?
The Department clarified that salary, wages, commissions, or tips are capped at $100,000 on an annualized basis for each employee.
How much of the loan is forgiven?
Due to likely high subscription, the Department anticipates that not more than 25% of the forgiven amount may be for non-payroll costs.
What is the interest rate of the loan?
0.5% fixed rate.
Read the latest guidance information issued by the Department of Treasury below.
For a top-line overview of the program, click here.
If you’re a lender, more information can be found here.
If you’re a borrower, more information can be found here.
The application for borrowers can be found here.
For more information on the above program or for assistance in applying for the program, please contact Babst Calland Attorneys Moore Capito at 304.552.8986 or mcapito@babstcalland.com, Christian Farmakis at 412.394.5642 or cfarmakis@babstcalland.com or Andrew Terranova at 412.773.8717 or aterranova@babstcalland.com.
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Client Alert
(by Moore Capito, Christian Farmakis and Andrew Terranova)
The COVID-19 pandemic is impacting every business sector in the United States. Federal government and the Commonwealth of Pennsylvania have announced various stimulus programs to assist businesses eligible to receive certain economic benefits. Babst Calland’s Corporate and Commercial attorneys have been following the existing and new stimulus programs currently being offered.
This is a time-sensitive opportunity to consider how these programs may apply to your business. Various programs are summarized below for your convenience. Together, we can help you navigate this crisis and prepare your organization to continue thriving in the months and years ahead. To schedule a private conversation to help you evaluate whether these programs are right for your company, contact Attorney Moore Capito at 304.552.8986 or mcapito@babstcalland.com.
ECONOMIC INJURY DISASTER LOAN
Description
An Economic Injury Disaster Loan (EIDL) is a long-term, low-interest loan that provides small businesses with working capital of up to $2 million directly from the U.S. Treasury. The intent of this federal program is to provide six months of working capital to qualified applicants.
In response to the impacts of the COVID-19 pandemic, the U.S. Small Business Administration (SBA) has lifted certain requirements to make it easier for small businesses to receive an EIDL.
Who is eligible to receive it?
Small businesses and sole proprietors in all 50 states, Washington, D.C., and U.S. territories may apply for an EIDL, so long as they do not exceed the size standard for the industry in which they operate. For a list of the size standards per industry, click here. Eligibility is also based on a series of factors set forth on the application.
What are the terms of the loan?
An EIDL has a maximum 30-year term, with a 3.75% interest rate for small businesses and 2.75% interest rate for non-profit businesses, with no fees or closing costs. Normally, an EIDL requires collateral for any loans over $25,000, but this requirement has been waived due to the COVID-19 pandemic.
A small business can expect to receive funds roughly 25 to 30 days after submitting the loan application.
What can the loan be used for?
The funds can be used to pay fixed debts, real estate payments, payroll, accounts payable, and other bills that cannot be paid because of the disaster’s impact, as well as be used to purchase equipment and machinery. The loan proceeds cannot be used to refinance long-term debt.
How to apply?
The application can be submitted online through the SBA’s website here. An applicant should expect to provide the following:
- Business Loan Application (Form 5)
- Tax Information Authorization (IRS Form 4506T)
- Complete copies of most recent federal income tax returns
- Personal Financial Statement (SBA Form 413)
- Schedule of Liabilities listing all fixed debts (SBA Form 2202 may be used)
These forms will apply to the applicant, principals owning 20% or more of the business, general partners, and/or managing members. Applicants should be prepared to provide two to three years of tax returns, prior year financial statements, year-to-date financial statements, property leases, and working knowledge of business and personal credit scores.
PAYCHECK PROTECTION PROGRAM
Description
The Paycheck Protection Program (PPP Loan), enacted as part of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), is a $350 billion federal program designed to provide loan assistance to qualifying small businesses to retain workers, maintain payroll, and cover other qualifying expenses such as mortgage interest payments, group health benefits, rent payments, lease obligations, utility expenses, and interest on any other debt incurred before the Cover Period (as defined below). PPP Loans are 100% federally guaranteed loans and forgivable in certain instances. If forgiven, the loan is not taxable. PPP Loan proceeds can be used to pay payroll expenses, debt obligations, and other qualifying expenses during an eight-week period between February 15, 2020 to June 30, 2020 (Covered Period).
Who is eligible to receive it?
Any small business, 501(c)(3) nonprofit, 501(c)(19) veterans organization, or Tribal business concern described in section 31(b)(2)(C) of the Small Business Act that employs 500 employees or fewer, or the applicable size standard for the industry as provided by Small Business Act, if higher, is eligible to receive a PPP Loan.
Restaurants, hotels, and businesses that fall within the definition of “Accommodation and Food Services” according to the North American Industry Classification System (NAICS) code 72 are eligible if each physical location employs 500 or fewer employees.
Sole proprietors, independent contractors, gig economy workers, and other self-employed individuals are also eligible for a PPP Loan.
Note, a qualifying business may not take out an Economic Injury Disaster Loan (EIDL) and PPP Loan for the same purpose, however, an EIDL may be refinanced into a PPP Loan subject to certain terms and provisions.
How much money can be borrowed?
Generally, the maximum amount a qualified applicant may borrow under this program will be 2.5 times the average total monthly “Payroll Costs” for the one-year period before the PPP Loan is made. However, under no circumstances can any applicant borrow more than a maximum amount of $10 million. Note, separate calculations designed to address seasonal employers or employers that did not exist prior to June 30, 2019 are provided for in the act.
How to apply?
Applicants can apply directly to lending institutions that are already approved SBA lenders or that have been recently approved by the U.S. Department of Treasury. An applicant need not contact the SBA or any other governmental entity to apply. To locate an SBA-approved lender in your area, use the Lender Match online referral tool on SBA’s website (click here). There is no fee to apply for a PPL Loan.
Applicants may apply for a PPP Loan anytime during the Covered Period.
How much of the loan is forgiven?
The amount of principal that may be forgiven is determined by the expense and timeframe in which the expense occurred. Only expenses related to payroll costs, interest payments on mortgages, rent payments, lease payments, and utility agreements are eligible for forgiveness. While funds may be used to pay other expenses or obligations, those amounts will not be forgiven.
Payroll costs include salaries (up to an annual rate of pay of $100,000), hourly wages and tips, paid or medical leave, and health insurance premiums. For mortgage interest, rent, and utility expenses to be forgiven, the related agreements must have been effective before start of the Covered Period.
The amount of principal to be forgiven may be reduced if not all employees are retained at the same monthly average compensation as during the previous 12-month period. In other words, if a business keeps all its employees, the entirety of the loan will be forgiven. The amount forgiven will be proportionately reduced based on the percentage decrease in workforce. Additionally, if payroll costs (associated with workers making less than $100,000 annually) decreases more than 25%, the amount forgivable will be proportionately reduced by a number equal to the percentage decrease. Finally, decreases related to reduction in workforce and/or payroll costs will not affect the amount of forgiveness if the employees are reinstated and/or costs are restored by June 30, 2020.
The lender is required to render a decision on the amount of principal to be forgiven within 60 days of receiving an application for forgiveness. If the full principal of the loan is forgiven, there is no interest due to the lender for the eight-week period. If less than the entire amount is forgiven, the interest due to the lender is governed by the terms entered into by the borrower and the lender.
Click here to read the latest guidance information issued by the Department of Treasury.
COVID-19 WORKING CAPITAL ACCESS PROGRAM
Description
Pennsylvania Governor Tom Wolf announced that $60 million in funding has been made available to provide working capital loans to small businesses located in the Commonwealth of Pennsylvania through the COVID-19 Working Capital Access Program (CWCA). The intent of the CWCA is to provide working capital to eligible Pennsylvania businesses. The CWCA is administered by the Pennsylvania Industrial Development Authority (PIDA).
It is anticipated that these funds will be in high demand. Demand will most likely exceed the funding available. Eligible small businesses in need of assistance should begin compiling the necessary paperwork and documentation to obtain funding immediately.
Who is eligible to receive it?
Businesses located in Pennsylvania having 100 or fewer full-time employees worldwide at the time of application are eligible to apply for a CWCA loan.
What can the loan be used for?
The CWCA loan proceeds must be used for operational working capital needs. The loan proceeds cannot be used to pay expenses relating to fixed assets or to acquire production machinery and equipment. In addition, the loan proceeds cannot be used for loan repayments, dividend distributions, finance of a project located outside of the Commonwealth, or for future or projected costs.
What are the terms of the loan?
A CWCA loan has a three-year term. No payments are due during the first year. Principal and interest, if applicable, will be due monthly for years two and three, and a balloon payment will be due and payable at the end of the third year. Interest rates are 0%, except for agricultural producers, which loans will be subject to a fixed 2% rate during the life of the loan. No matching investment is required, except for retail/service enterprises, and there are no job retention or creation requirements. For retail/service enterprises, the CWCA program can finance 50% of eligible working capital costs up to $100,000.
How to apply?
Loan applications are submitted to the Certified Economic Development Organization (CEDO) that services the county where the business is located (see the full list of CEDOs here). Applicants are required to provide a Project Narrative, Company Profile Sheet, W-9 Form, Certification Sheet, Debt Schedule, Cash Flow Analysis Statement, Personal Financial Statement, and other additional information, including financial statements and a credit report. The CEDO will review the application and forward completed applications to PIDA. Applicants will be responsible for direct costs associated with the application process, such as costs associated with obtaining a credit report and submitting financial filings.
Eligible small businesses in need of assistance should begin compiling the necessary paperwork and documentation immediately to obtain funding given the limited resources available.
PENNSYLVANIA SHARED-WORK PROGRAM
Description
The Pennsylvania Shared-Work Program (Shared-Work Program) allows employers to temporarily reduce the work hours of a group of employees, and those in the “group” become part of a “shared-work plan.” When the reduction occurs, those employees in the shared-work plan are eligible to receive unemployment benefits associated with the hours that they lost due to the reduction. The goal of the Shared-Work Program is to keep employees on companies’ payrolls rather than laying them off completely. In short, employees receive “shared-work” unemployment compensation benefits during the reduction period, and employers retain their skilled workforce during a temporary slowdown.
Who comprises a shared-work group?
At least two participating employees in one affected unit or a department, shift or other organizational unit defined by the employer. Generally, all employees in the affected unit are required to participate in the shared-work plan, except for employees employed for less than three months or employees who work 40 hours or more a week.
How does it work?
Employees participating in a shared-work plan will have their work hours reduced by at least 20% but not more than 40%. This reduction percentage must be the same for all employees participating in the shared-work group. The employees receive a percentage of their maximum allowable unemployment compensation equal to the reduction percentage (i.e., if the employees’ hours are reduced by 25%, then they would receive 25% of their maximum permitted unemployment compensation).
The shared-work plan will automatically terminate upon the expiration date provided for in the plan, or an employer may terminate the plan prior to the expiration date by providing written notice to the Office of UC Benefits Policy.
What are the qualifications and restrictions?
An employer may participate in the Shared-Work Program if it has filed all unemployment compensation tax reports and paid all amounts due under Pennsylvania unemployment compensation law, has a positive reserve account balance (for contributory employers), and has paid wages for the last 12 consecutive quarters.
While enrolled in the Shared-Work Program, an employer agrees not to hire new employees in, or transfer employees to, the unit affected by the shared-work plan during the effective period. The employer also agrees to not lay off participating employees during the effective period or reduce a participating employee’s hours by more than the reduction percentage, except during holidays, designated vacation periods, equipment maintenance or similar circumstances. Any change in the reduction percentage needs to be approved by the Department of Labor and Industry (Department) as part of a modified plan. Fringe benefits need to continue to be available to participating employees not covered by a collective bargaining agreement.
How to apply?
Applicants must complete a Pennsylvania Unemployment Compensation Shared-Work Plan application, which can be started online here. The application should include the following:
- The name of the applicant and the affected unit that will be subject to the shared-work plan;
- The reduction percentage of shared-work employees’ hours;
- The beginning date of the reduction in hours;
- The end date of the reduction in hours;
- Any period that the hours of work will be reduced by more than the reduction percentage due to holidays, vacations, equipment maintenance or similar circumstances;
- All participating employees’ names, Social Security numbers, normal weekly hours and reduced hours; and
- The union’s approval of the proposed plan, if participating employees are covered by a collective bargaining unit.
Applications will be reviewed within 15 days of receipt. The decision to approve a shared-work plan is within the Department’s discretion and is not appealable. If denied, employers are permitted to submit new applications.
For more information from the Office of Unemployment Compensation, click here.
For more information on any of the above programs or for assistance in applying for any the programs, please contact Babst Calland Attorneys Moore Capito at (304) 552-8986 or mcapito@babstcalland.com, Christian Farmakis at (412) 394-5642 or cfarmakis@babstcalland.com, or Andrew Terranova at (412) 773-8717 or aterranova@babstcalland.com.
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Environmental Alert
(by Lisa Bruderly, Ben Clapp and Gary Steinbauer)
In light of historic protective measures and travel bans to prevent community spread of COVID-19, the U.S. Environmental Protection Agency (EPA) issued an unprecedented temporary policy for exercising its enforcement discretion for environmental noncompliance caused by the COVID-19 pandemic. On March 26, 2020, the EPA published a memorandum entitled, COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program (“EPA’s COVID-19 Policy” or “Policy”). EPA’s COVID-19 Policy applies retroactively, beginning on March 13, 2020, and is in effect until EPA provides notice online within seven days of its termination. This Alert addresses five critical questions about EPA’s COVID-19 Policy.
When Does EPA’s COVID-19 Policy Apply?
EPA’s COVID-19 Policy applies when environmental compliance is not “reasonably practical,” despite making every effort to comply. Coverage under the Policy is not automatic. It requires regulated entities to take, at a minimum, the following proactive steps: (1) minimize the effect and duration of any noncompliance; (2) identify the nature and date(s) of noncompliance; (3) identify how COVID-19 caused the noncompliance and describe the response actions taken; (4) return to compliance as soon as possible; and (5) document each of these actions.
What Compliance Monitoring and Reporting Obligations Does the Policy Cover?
Generally, EPA does not expect to assess penalties for violations of a wide-range of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations if: (1) the regulated entity takes the steps outlined above and documents that COVID-19 was the cause of the noncompliance, and (2) EPA agrees with the entity’s determination.
EPA expects regulated parties to use existing statutory, regulatory, and permitting requirements for reporting COVID-19-related noncompliance, unless COVID-19 response actions themselves hinder reporting, in which case EPA expects facilities to document and maintain noncompliance-related information internally and make it available upon request. “Catching up” is not expected for missed monitoring and reporting, when the underlying obligation applies to intervals of less than three months. For monitoring and reporting obligations that apply on a semi-annual or annual basis, EPA expects facilities to monitor and report as soon as possible after the Policy is terminated and submit reports late, if necessary. EPA also encourages regulated parties to use electronic reporting, digital signatures, and e-mail to meet reporting obligations.
What Expectations Does EPA Have for Facility Operations?
EPA expects all regulated entities to operate their facilities in a manner that is safe and protective of human health and the environment. If non-compliance caused by COVID-19 could result in an acute risk or an imminent threat to human health or the environment, regulated entities are expected to notify the appropriate implementing authority (i.e., for authorized programs, the state or tribe) and are encouraged to notify the EPA as well. EPA will then coordinate with state and tribal authorities and work with the facility to minimize or prevent the acute risk or imminent threat from the COVID-19 caused noncompliance and obtain a return to compliance.
If a facility exceeds air emission or wastewater discharge limitations as a result of a failure of pollution control equipment (e.g. air emission controls, wastewater treatment systems) caused by COVID-19, the facility is expected to notify the implementing authority as quickly as possible. The notification should include information on the pollutants released as a result of the failure, a comparison between the expected non-compliant release or exceedances and applicable permit limits, and the expected timing and duration of the release or exceedances. EPA will evaluate the circumstances, including the COVID-19 pandemic, when determining whether an enforcement response is appropriate.
If COVID-19 disruptions prevent hazardous waste generators from transferring waste off-site as required by RCRA, EPA will continue to treat such entities as hazardous waste generators, rather than as treatment, storage and disposal facilities, if the entity properly stores and labels the waste and takes the steps outlined above. Similarly, Very Small Quantity Generators and Small Quantity Generators will retain their status, even if the quantity of stored hazardous waste exceeds the regulatory threshold, if they properly store and label the waste and take the steps outlined above.
For settlement agreement-related obligations and milestones, EPA expects parties to utilize the noncompliance notification provisions in the settlement agreements, including force majeure provisions. Under its administrative settlement agreements, EPA does not intend to seek stipulated penalties for compliance obligations that were missed due to COVID-19, if the steps outlined above are taken. The Policy recognizes that consent decrees with the U.S. Department of Justice (DOJ) and EPA are court orders, and courts retain jurisdiction. Nonetheless, EPA plans to work with DOJ to exercise discretion not to pursue stipulated penalties for COVID-19-related noncompliance.
How Will EPA Focus Its Resources During this Period?
EPA expects to focus its resources largely on situations that may create an acute risk or an imminent threat to human health or the environment. However, all ongoing enforcement matters will continue.
What are the Exceptions and How Does the Policy Affect State Environmental Obligations?
The Policy does not apply to activities carried out under Superfund or RCRA Corrective Actions. EPA policy with respect to those programs will be issued separately. The Policy also does not apply to violations that are the result of an intentional disregard for the law (i.e., criminal violations). EPA also makes clear that the Policy is not intended to relieve an entity from its obligation to prevent, respond to, or report accidental releases of pollutants.
Importantly, the Policy only addresses EPA’s enforcement discretion for federal environmental noncompliance caused by COVID-19 and does not address noncompliance situations when a state is the authorized authority. Several state environmental regulatory agencies have taken similar steps to provide relief during this unprecedented time and affected regulated entities should ensure that they understand the requirements of any applicable state or tribal COVID-19 related enforcement discretion policies. As an example, the Ohio Environmental Protection Agency (Ohio EPA) has established a website explaining how regulated parties can make COVID-19-related enforcement discretion requests for unavoidable noncompliance situations. Ohio EPA has created an email submission process to field enforcement discretion requests and pledges to timely respond.
Babst Calland’s environmental attorneys are available to help you develop and implement procedures for addressing Coronavirus-related environmental noncompliance under the Policy. For more information, please contact Lisa M. Bruderly at (412) 394-6495 or lbruderly@babstcalland.com, Ben Clapp at (202) 853-3488 or bclapp@babstcalland.com, or Gary E. Steinbauer at (412) 394-6590 or gsteinbauer@babstcalland.com.
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Client Alert
(by Blaine Lucas, Stephen Korbel and Max Junker)
Among the many challenges facing Pennsylvania municipalities during the Coronavirus pandemic is how to conduct business in compliance with applicable statutory requirements when the physical presence of their officials, constituents, development applicants and other interested parties is either highly discouraged by public health officials or prohibited altogether. This can be particularly problematic for applicants for a variety of local government land use approvals, consideration and action on which usually are statutorily mandated to take place at public meetings and hearings.
In an effort to address these issues, the Pennsylvania General Assembly is currently considering House Bill No. 1564 on an expedited basis. Among other things, HB 1564 would relax the requirements for physical attendance at public meetings during the Governor’s declaration of a disaster or emergency by substituting a variety of telecommunications alternatives. It also would provide for the suspension, or tolling, of statutory deadlines for municipal boards and agencies to hear and act upon a wide variety of land use and other development applications during the pendency of such a declaration. Notably, HB 1564 provides that an applicant can request, and a municipality at its discretion may proceed with, consideration and action on an application using telecommunication alternatives.
HB 1564 is on a fast track, with the House approving it on March 25, 2020, and the Senate expected to act upon it in the next several days. HB 1564 can be viewed here.
The following are the key provisions of HB 1564.
Use of Telecommunication Devices to Conduct Public Meetings
If the declaration is of a disaster or emergency which would render the conduct of public business dangerous to the health or safety of the members of the governing body, officials or members of the public, the governing body may exercise its executive, legislative, and judicial powers and functions, to the extent possible, by means of telecommunication devices without a quorum physically present at any one location, subject to the following requirements:
- The telecommunication device must permit audio communication between locations, and allow the members of the governing body to speak and hear any comments or votes;
- The governing body must, no later than 24 hours prior to the meeting, post notice on its website of the time and date of the meeting, along with instructions on how to obtain remote participation information, and notify the newspaper of general circulation which normally publishes such notices of the meeting;
- The governing body must (1) either live-stream the meeting, (2) record the meeting and make it available to the public within 24 hours after the meeting, including on the municipality’s website, if any, or (3) make draft meeting minutes available for public inspection within 48 hours after the meeting either on its website or at an accessible location within the municipality; and
- If the governing body has exercised any executive, legislative, or judicial powers or functions, at the next regularly scheduled public meeting once the declaration has been lifted the governing body must adopt a resolution stating both the actual emergency that occurred and the nature of the power or function exercised.
Extensions for Existing and Pending Approvals
If a municipality, its agency, or board has received an application, plat, plan or other submission for an “approval” as defined in Section 2 of the 2013 Permit Extension Act (which covers local government approvals pursuant to over 30 statutes, including the Municipalities Planning Code, the Flood Plain Management Act, the Stormwater Management Act, the Pennsylvania Construction Code, and the various city, borough and township codes) and the final day to approve or deny the application falls during a disaster declaration, the following would apply:
- As of the date of the declaration, all statutory time limits for review, hearing, and decision on the application will be suspended or tolled, and will resume on the date following the termination of the declaration;
- The municipality must notify the applicant of the declaration, the time extension, and of the right to request any meetings, hearings, or proceedings be conducted using telecommunication devices;
- The failure to receive the notice does not affect the tolling of days;
- The applicant may request any meetings, hearings, or proceedings as required by the law, charter or ordinance governing the application during the period of the disaster;
- The municipality may proceed with the request at its discretion;
- If the municipality agrees and holds the proceedings, the applicant, municipality, and any other parties receiving actual notice of the proceedings, waive any challenge to the proceedings under 42 Pa. C.S. §5571.1 (relating to appeals from ordinances, resolutions, maps) or any other provision of law; and
- The running period of any approval granted and in effect after the beginning of the declaration is automatically suspended during the declaration and resumes after the final termination of the disaster or emergency.
For additional information, please contact Blaine A. Lucas at blucas@babstcalland.com or 412-394-5657, Stephen L. Korbel at skorbel@babstcalland.com or 412-394-5627, or Robert Max Junker at rjunker@babstcalland.com or 412-773-8722.
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