Pipeline Safety Alert
(by James Curry, Keith Coyle and Brianne Kurdock)
On October 1, 2019, the Pipeline and Hazardous Materials Safety Administration (PHMSA or the Agency) published a Final Rule in the Federal Register updating its procedural requirements for issuing emergency orders (EO). In 2016, PHMSA issued temporary regulations for issuing emergency orders in an interim final rule (IFR). Unlike the process that ordinarily applies to PHMSA rulemakings under the Pipeline Safety and Administrative Procedure Acts, the Agency issued the temporary EO requirements without providing the public with prior notice or the opportunity to submit comments. The final rule takes effect on December 2, 2019, and includes changes that the Agency deemed necessary based on comments submitted after the IFR.
What is an Emergency Order?
Congress authorized PHMSA to issue EOs in the Protecting Our Infrastructure of Pipelines and Enhancing Safety (PIPES) Act of 2016. In response to an imminent hazard, PHMSA may issue an EO imposing restrictions, prohibitions, or safety measures on pipeline owners and operators. Unlike a Corrective Action Order or a Safety Order, PHMSA may issue an EO to a group of operators that share a common condition or even the entire industry. PHMSA anticipates issuing an EO to respond to natural disasters, when serious flaws are discovered in pipes or in equipment manufacturing processes, or when an accident reveals an industry practice is unsafe. Aggrieved owners and operators may challenge an EO by choosing a formal hearing before an administrative law judge (ALJ) or filing a written response with the Associate Administrator. In either scenario, the Associate Administrator must issue the final decision within 30 days of receipt of a petition for review.
What Did PHMSA Change in the New Final Rule?
PHMSA made several important changes to the process of challenging an EO in the final rule, including:
- Removing the discretion initially afforded to the Associate Administrator to unilaterally determine that no material facts are in dispute;
- Limiting PHMSA’s authority to issue EOs “to the extent necessary to abate the imminent hazard;”
- Providing that all pipeline operators subject to an EO will be personally served;
- Removing the Associate Administrator’s ability to determine that a formal hearing is more appropriate for a particular petition;
- Clarifying that a violation of the pipeline safety regulations can serve as part of the factual basis for an EO, but the Agency would not use an EO to allege or
make findings of violation;
- Acknowledging that the Agency carries the burden of proof to sustain an EO, but that the responsive party bears the burden of proving any affirmative defenses;
- Clarifying that a petition for review seeking a formal hearing and a “substantially similar” petition that does not request a hearing can be consolidated, but that the Agency does not intend to force the non-hearing petitioner to participate in the formal hearing process. The Agency also added a process to de-consolidate a proceeding if changed circumstances warrant such action; and
- Stating that if an emergency order has been in effect for more than 365 days, the Administrator will make an assessment regarding whether the unsafe condition or practice continues to exist. If the imminent hazard still exists, PHMSA will initiate a rulemaking. If it does not exist, the Administrator will rescind the emergency order.
For a more detailed assessment or a redline of this rule, please contact a member of the Pipeline and HazMat Safety Practice group.
Click here for PDF.
Employment and Labor Alert
(by Stephen Antonelli and Brian Lipkin)
As we previously reported, the United States Department of Labor (DOL) has been considering changes to the overtime laws. Last week, the DOL finalized a new overtime rule, which takes effect on January 1, 2020. Here are the biggest changes:
Higher Salary Threshold. The new rule raises the salary threshold that exempts certain executive, administrative, professional, and outside sales employees from overtime. Under the new rule, these employees will need to earn a salary of at least $35,568 per year ($684 per week) to be classified as “exempt” from overtime. This is an increase from the current salary threshold of $23,660 per year ($455 per week).
Changes for Highly Compensated Employees. Under the existing federal overtime rules, certain “highly compensated” employees, who earn a salary of at least $100,000 per year, are also exempt from overtime. The new rule increases to $107,432 per year the minimum salary for employees to qualify as “highly compensated.” (Pennsylvania does not recognize the highly compensated employee exemption, so this change may only affect employers in other states.)
Handling of Bonuses. The new rule will allow employers to count nondiscretionary bonuses and incentive payments, which are paid at least once per year, toward up to 10% of the salary threshold. For example, an employee who earns a salary of $33,000 per year and a nondiscretionary bonus of $3,000 per year satisfies the salary threshold under the new rule.
If the new rule takes effect, it will be the first increase in the salary threshold since 2004. There is a still a chance, though, that a court will be asked to block or the delay the rule. This happened in August 2017, when a federal judge in Texas struck down the DOL’s previous attempt to increase the salary threshold.
The new rule does not affect the job duties tests, which determine whether employees who meet the salary threshold qualify for the executive, administrative, professional, or outside sales exemptions.
The DOL estimates that an additional 1.3 million employees will become eligible for overtime under the new rule. We recommend that employers take the following steps:
Identify employees who may become eligible for overtime. Before January 1, 2020, employers should consider the rule’s impact on employees who earn salaries between $23,660 per year (the current threshold) and $35,568 per year (the new threshold). If employers don’t take any action, these employees will become eligible to earn overtime if they work more than 40 hours per week. For employees who earn slightly below the new salary threshold, it may be more cost-effective for employers to provide a raise to $35,568 per year in order to avoid paying overtime. Employers outside of Pennsylvania may wish to provide raises to another group: employees who currently satisfy the highly compensated employee exemption, who earn salaries between $100,000 and $107,432 per year. If these employees earn
salaries of at least $107,432 year, they will remain “highly compensated” under the new rule.
Review job duties. Use this new rule as an opportunity to review the job duties performed by all employees who are currently classified as exempt. Is the “primary duty” of these employees still to perform executive, administrative, professional, or outside sales work, as the DOL defines these terms? Do the employees have written job descriptions, which accurately reflect their current duties?
Babst Calland’s Employment and Labor Group will continue to keep employers apprised of further developments related to this and other employment and labor topics. If you have any questions on how this rule will affect your business, please contact Stephen A. Antonelli at (412) 394-5668 or santonelli@babstcalland.com or Brian D. Lipkin at (412) 394-5456 or blipkin@babstcalland.com.
Click here for PDF.
The Legal Intelligencer
(by Brian D. Lipkin and Carly Loomis Gustafson)
When an employee quits, the employer might dig through its files, dust off an old noncompete agreement, and see what rights (if any) it has under the agreement. Does this scenario sound familiar?
Unfortunately, by the time an employee has quit, it’s too late to go back and correct an outdated or insufficient agreement. So, we recommend that each fall, employers look through their existing noncompete agreements (and other restrictive covenants, such as nonsolicitation agreements), and fix these eight common problems:
Problem No. 1: Over the years, the employee signed multiple, conflicting agreements.
Fix: When an employee signs a new agreement, it should clearly state that it replaces all previous agreements.
Problem No. 2: The employee did not receive consideration—such as a new position, raise, bonus or promise of employment for a fixed time period—in exchange for signing the agreement.
Fix: If an employer realizes that an employee may not have received adequate consideration, the employer can pay a bonus in exchange for signing a new agreement. By timing its review of restrictive covenants in the fall, an employer can prepare for employees to sign updated agreements when they receive year-end bonuses or raises.
Problem No. 3: The agreement doesn’t detail what the employee is restricted from doing.
Fix: We often see agreements that prohibit an employee from going to work for a “competitor.” The problem with this language is that it inevitably leads to a dispute about whether the new and old employers really compete with each other.
If an employer is concerned about employees leaving for specific companies, those companies should be named in the agreement. The employer should add that the named companies are only examples, and that the employee is also prohibited from going to work for other companies doing business in a defined industry.
Problem No. 4: The employee’s position, or the employer’s business, has changed since the agreement was signed.
Fix: The employer should consider the restrictions in the original agreement, and confirm they still make sense. For example: since signing the agreement, does the employee still work in the same line of business, in the same geographic area? Does the employee still hold the same position, or have they changed responsibilities or gotten a promotion?
What about the employer—has it moved, closed locations or opened new locations that now need to be protected? Has the employer entered new lines of business, or is it preparing to do so? Does it face any new competitive threats?
Problem No. 5: The agreement limits an employee’s ability to compete, but it’s missing other restrictions.
Fix: Employers often refer to all types of restrictive covenants as noncompete agreements. But, a restriction on an employee’s ability to compete may not go far enough, so the employer should consider adding other restrictions.
Nonsolicitation provisions can restrict employees from going after customers, other employees and referral sources. The employer can even require an employee to stay away from named customers and individuals, but should add that they are only examples.
Employers should also consider including confidentiality provisions, (which do not need to be supported by consideration).
Problem No. 6: The agreement doesn’t define what it means for an employee to “solicit.”
Fix: To avoid any doubt, the agreement should restrict an employee from attempting to do business with any customer, other employee or referral source—even if the other person contacts the employee first. The agreement should also restrict the employee from engaging in solicitation indirectly, through another person.
Problem No. 7: The agreement contains unenforceable restrictions.
Fix: Pennsylvania courts enforce restrictive covenants, to the extent they are necessary to protect a legitimate business interest. The employer should think about whether it could explain to a future judge why it really needs the restrictions to protect its business.
Does the employee’s position even require restrictive covenants? For instance, a sandwich chain infamously required its kitchen workers to sign noncompete agreements.
If an agreement is needed, does it limit the employee’s activities for six months or one year? Courts in Pennsylvania generally enforce these time periods with respect to covenants not to compete and solicit. Longer time periods have also been enforced, but they can be harder for employers to justify.
Does the employer need to limit the employee’s activities worldwide or nationwide, or would a narrower geographic area be sufficient? An employer could consider restricting activities within particular states, counties or cities. Restrictions could also apply for a certain number of miles from locations of the employer and employee.
We recommend that employers include a “blue pencil” provision, stating that if a judge finds the restrictions are too broad, their scope should be limited so that they can be enforced.
Problem No. 8: The agreement doesn’t contain a mandatory “forum selection” provision identifying where any disputes over the agreement must be litigated.
Fix: The employer should add this provision, and identify the state and federal court that are most convenient for the employer. For a court to enforce this provision, the selected location would need to be reasonably related to the employer or employee.
By fixing these common problems, employers can put themselves in the best position to enforce noncompete agreements and other restrictive covenants in the future.
For the full article, click here.
Justine M. Kasznica spoke at the Pennsylvania AV Summit on September 4-6 on a panel focused on autonomous vehicle regulations and standards. Leaders within the industry discussed AV regulations and standardization, balancing safety and innovation, consumer expectation, and self-certification vs. third-party verification.
Panelists photographed left to right: William Gouse, Ground Vehicle Standards – SAE International, Justine M. Kasznica, Attorney at Law – Babst Calland, Monica Lopez, Chief Science and Art Officer – La Petite Noiseuse Productions, Kelly Funkhouser, Head of CAV/Program Manager for Vehicle Usability and Automation – Consumer Reports, Auto Test Center, Matthew Wood, Safety Engineering Lead – Aptiv, and Jackie Erickson, Senior Director of Communications – Edge Case Research.
Employment & Labor Alert
(by Stephen Antonelli and Alexandra Farone)
In May 2019, we issued a Client Alert after the U.S. District Court for the District of Columbia ordered the EEOC to collect employers’ pay and hours worked data (commonly referred to as “Component 2 Data”) from certain employers. Specifically, the Court ordered the EEOC to collect such data from employer-selected pay periods during the years 2017 and 2018.
We issue this follow-up Client Alert because, by September 30, 2019, all employers with at least 100 employees are required to collect and submit Component 2 Data for a “workforce snapshot period” as selected by the employer for the reporting years 2017 and 2018.
The mandate for employers to collect Component 2 Data is the subject of an ongoing federal lawsuit. The Department of Justice has appealed the court order, but the requirement to comply and produce the data by September 30, 2019 remains in full force and effect during the pendency of the appeal.
The EEOC portal website through which employers can submit information can be found at: https://eeoccomp2.norc.org/.
Employers should keep the following steps in mind when preparing to produce Component 2 Data:
- Identify an appropriate workforce snapshot period—one pay period—for each reporting year.
- Gather, sort, and verify the relevant Component 2 Data including employees’ race/ethnicity, sex, W-2 payroll information, and hours worked.
- Provide actual hours worked by employees who are not exempt under the Fair Labor Standards Act (FLSA). For employees who are exempt from the FLSA, employers can provide either proxy hours or actual hours worked.
- Determine the number of full- and part-time employees pursuant to each of the 10 EEO-1 job categories.
- Identify the number of employees who fall within each of the 12 compensation bands for each of the EEO-1 job categories. Employers must use Box 1 of an employee’s IRS Form W-2 to determine the appropriate compensation band to which each employee will be assigned.
- Tally the number of employees in each compensation band and job category by race/ethnicity and sex.
- Calculate the total number of hours worked (by race/ethnicity and sex) for the total number of employees who fall within the same compensation band for each job category. “Hours worked” should not include paid leave time such as PTO, holidays, or vacation days.
- Decide whether to manually enter the data in an online form, or to create a separate data file for upload. Data file specifications have been released by the EEOC, and employers opting to create a data file are encouraged to develop the files in advance to ensure accurate and timely compliance.
Babst Calland’s Employment and Labor Group can assist employers that are subject to this regulation by helping them with selecting an appropriate workforce snapshot period, organizing and categorizing employees’ data, creating a compliant data upload file for submission, and navigating the nuances of this data collection. For more information about what is required and how Babst Calland can assist you, please contact Stephen A. Antonelli (412) 394-5668 or santonelli@babstcalland.com, or Alexandra G. Farone at (412) 394-6521 or afarone@babstcalland.com.
For the PDF, click here.
Environmental Alert
(by Christopher (Kip) Power and Robert Stonestreet)
On August 12, 2019, the federal District Court for the Southern District of West Virginia (Judge Irene C. Berger) entered an order dismissing a lawsuit filed by the Sierra Club and other organizations (Citizen Groups) seeking to halt operations under a mining permit issued to Republic Energy, LLC (Republic) by the West Virginia Department of Environmental Protection (WVDEP). Coal River Mountain Watch, et al. v. Republic Energy, LLC, Civil Action No. 5:18-cv-01449, S.D. W.Va. (Memorandum Opinion and Order, August 12, 2019). The Citizen Groups had sought to bring an end to mining under the permit because operations were not initiated until 2018, even though the permit was originally issued by the WVDEP in June 2008. Pursuant to W.Va. Code § 22-3-8(a)(3) (a part of WVDEP’s approved program under the federal Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §1201, et seq. (SMCRA)), a mining permit terminates if mining activities under it are not initiated within three (3) years of its issuance, unless extended by the WVDEP. The company that previously held the Republic mining permit never requested such an extension. The WVDEP, however, granted an extension of the permit at issue in February 2012, after the agency had notified the permit holder of the expiration of the three-year limit and provided that company with an opportunity to seek a late (retroactive) extension. After the permit was transferred to Republic, it sought and received a further extension in 2015 on the basis of financial hardship, which the Court noted “is not a recognized statutory justification for an extension.”
Before filing the federal civil action, the Citizen Groups had filed an administrative complaint about the situation with the federal Office of Surface Mining Reclamation and Enforcement (OSM), which is the oversight agency under SMCRA. The Citizen Groups tried to convince OSM to invalidate the permit. OSM declined to do so and concluded that WVDEP had not acted arbitrarily or abused its discretion by extending the permit. Though not explained in the August 12 opinion, the primary reason that the WVDEP allowed Republic’s predecessor to seek an untimely, retroactive extension of the permit was based on the fact that the WVDEP (at that time) had a long-established practice of providing operators with notice of the impending expiration of the three-year limitation period. The WVDEP did not provide that notice to the permit-holder in this case, and the agency concluded that it would be unfair to penalize the company for assuming that it would receive notice under that policy.
During the pendency of the case, the WVDEP renewed the mining permit on January 10, 2019. The Citizen Groups did not avail themselves of the opportunity to pursue an administrative appeal of the renewal before the West Virginia Surface Mine Board, apparently willing to bank their hopes of terminating the operations under the permit on this federal court challenge.
Although a number of different grounds were put forward by Republic in support of its motion to dismiss, the District Court dismissed the Citizen Groups’ lawsuit on the basis of a narrow ruling that the case did not fit within the scope of SMCRA’s Citizen Suit provision at 30 U.S.C. §1270(a)(1). That provision allows affected persons to bring a citizen suit against any person “who is alleged to be in violation of any rule, regulation, order or permit” issued pursuant to SMCRA or an approved state program. The District Court found that “the essence of the Citizen Groups’ complaint is that the permit was issued (or extended) in violation of the statute,” not that Republic was operating in violation of its permit. That claim, in turn, is one in which the WVDEP’s conduct was at issue, rather than any activity by Republic. Since the Citizen Groups did not allege that Republic was violating any SMCRA rule, regulation, order, or permit, the District Court concluded that it did not have jurisdiction to consider the Citizen Groups’ claims. Therefore, the court dismissed the complaint.
The Court further observed that if the Citizen Groups had attempted to bring this action against the WVDEP, they would have likely been unsuccessful in light of the Fourth Circuit’s decision in Molinary v. Powell Mountain Coal Company, 125 F.3d 231 (4th Cir. 1997). In that case, the court ruled that SMCRA’s citizen suit provision does not allow a civil action to be brought against a state permitting agency to challenge the agency’s permitting decisions. Although not explained in the court’s opinion, this does not mean that no remedy exists for potentially improper agency permitting decisions. A challenge to a permitting decision by the WVDEP may be pursued through an administrative appeal with the West Virginia Surface Mine Board. Decisions by the Surface Mine Board may be appealed to circuit court and ultimately to the West Virginia Supreme Court of Appeals. The Citizen Groups could have challenged the legality of the WVDEP decisions to extend, and ultimately renew, the mining permit through such an appeal. The opinion does not indicate why the Citizen Groups did not pursue such an appeal.
The court’s decision is well reasoned and consistent with settled law that challenges to the issuance or terms of a mining permit must be pursued through the administrative appeal process. Such claims are not properly asserted via a citizen suit in federal court. This decision is also consistent with – and should help buttress – the regulatory framework established by SMCRA and the West Virginia mining program for the resolution of disputes over permitting decisions by state agencies.
At the same time, the proceedings described in this opinion have led the WVDEP to re-evaluate its administration of the “three-year, not started” statute, resulting in what many have perceived to be a more rigorous approach to evaluating exception requests from permittees. All mining permittees should consider creating their own internal alerts for permits as to which mining has not started within two (2) years, so that they will have sufficient time to develop their justification for an extension and present that to the WVDEP well ahead of the permit expiration date.
If you have any questions about the Republic decision or its impact on the mining industry, please contact Christopher B. (Kip) Power at (681) 265-1362 or cpower@babstcalland.com, or Robert M. Stonestreet at (681) 265-1364 or rstonestreet@babstcalland.com.
Click here for PDF.
The PIOGA Press
(by Robert Max Junker)
The argument that the Pennsylvania Constitution compels municipalities to classify natural gas extraction from shale formations as a “heavy industrial use” and therefore mineral development cannot occur in agricultural and rural residential zoning districts was roundly rejected by both the Commonwealth Court and the Supreme Court in the case of Frederick v. Allegheny Township Zoning Hearing Board, 196 A.3d 677 (Pa. Cmwlth. 2018) (en banc), appeal denied, ___ A.3d ___ (Pa., No. 449 WAL 2018, filed May 14, 2019). Nevertheless, opponents of natural gas development continue to be undeterred and refuse to give up this mantra. Attacks on municipalities’ legislative decisions on where natural gas development is appropriate within their own borders are still playing out in several Western Pennsylvania communities, with opponents seeking just one judicial decision that will breathe life into this moribund concept. With the June 26 decision from the Commonwealth Court in Delaware Riverkeeper Network v. Middlesex Township Zoning Hearing Board, No. 2609 C.D. 2015 (Pa. Cmwlth. June 26, 2019) (unreported decision), this tenuous theory was put on life support and yet its few remaining proponents stubbornly refuse to acknowledge the inevitable demise.
Middlesex Township is a rural community in Butler County. In 2014, the Board of Supervisors enacted a zoning ordinance amendment to expressly provide for the use and regulation of oil and gas operations within the township. The board decided that oil and gas well site development should be a permitted use by right in the rural residential, agricultural, residential agricultural and the restricted industrial districts; should be allowed as a conditional use following a public hearing in the commercial districts; and should not be permitted in certain other districts.
R.E. Gas Development, LLC applied for and received a zoning permit authorizing construction and operation of a well site on the farm owned and operated by Robert G. Geyer in the residential agricultural district. Opponents to the well site, led by the out-of-town Delaware Riverkeeper Network and Clean Air Council, challenged the validity of Middlesex’s zoning ordinance and appealed the permit claiming that the zoning ordinance was invalid under the Pennsylvania Constitution for three reasons. First, the objectors claimed the ordinance was not a valid exercise of the township’s police power because it was not designed to protect the health, safety, morals and public welfare in violation of Article 1, Section 1 of the Pennsylvania Constitution. Second, they argued that injecting incompatible industrial uses into a non-industrial zoning district was irrational and again in violation of Article 1, Section 1. Third, the objectors asserted that permitting the Geyer well site in the residential agricultural district unreasonably infringes on the objectors’ rights under Article 1, Section 27 of the Pennsylvania Constitution to clean air, pure water and a healthy local environment. After nine nights of hearings, the Middlesex Township Zoning Hearing Board denied the objectors’ challenge and appeal. The Court of Common Pleas of Butler County likewise denied the appeal.
This case presents an interesting and unusual background at a time when other judicial decisions were trying to make sense of the post-Robinson Township II legal landscape. The Commonwealth Court first addressed this case in an unpublished opinion filed June 7, 2017 (“Middlesex I”). The court found that the objectors did not meet their heavy burden to prove that the zoning ordinance was unconstitutional. In a brief mention, the court analyzed the Article 1, Section 27 claims under the three-part Payne v. Kassab test for reviewing government action that impacts the environment, and concluded that zoning ordinance was valid. The objectors appealed to the Supreme Court. At the time, the Supreme Court was considering but had not yet decided the Gorsline v. Fairfield Township case. That case had been accepted by the Supreme Court to address the question of whether natural gas development was fundamentally incompatible with residential zoning. Around the same time, the Supreme Court decided the PEDF case regarding the Commonwealth’s use of funds generated from the leasing of state forest and park lands for oil and gas exploration and extraction and expressly overruled the Payne v. Kassab test for claims under Article 1, Section 27. In an unusual move, the Supreme Court entered an order stating that it would not consider the Delaware Riverkeeper Network’s appeal until Gorsline was decided.
As it turned out, the Supreme Court did not address the constitutional questions accepted for review in Gorsline and instead only reversed the well pad approval there on narrow evidentiary grounds. But the court did conclude Gorsline by observing that “this decision should not be misconstrued as an indication that oil and gas development is never permitted in residential/agricultural districts, or that it is fundamentally incompatible with residential or agricultural uses.” The Supreme Court recited this quotation when it directed the Commonwealth Court to reconsider the Middlesex I decision in light of PEDF and Gorsline.
Returning to case on remand, the Commonwealth Court quoted heavily from its first opinion. It also now had the benefit of its opinion in Frederick, and found that case controlled the disposition of the Delaware Riverkeeper Network’s substantive due process claims. As in Frederick, the evidence considered by the Zoning Hearing Board could not be disturbed. The testimony and evidence showed that Middlesex had a long history of oil and gas development, which was viewed as an integral part of agricultural preservation and agriculture in general. The ordinance struck a careful balance between limiting suburban sprawl and benefitting agricultural preservation.
On the Article 1, Section 27 claim, the court again referred to Frederick and the interpretation of PEDF as expressed therein. The court found that the Zoning Hearing Board made proper conclusions with respect to environmental concerns. The board acted in its role as trustee for future generations by helping to preserve agricultural resources by permitting oil and gas development in agricultural areas. Oil and gas activities were excluded from exclusively residential districts, but the Zoning Hearing Board noted that “oil and gas drilling provides a financial mechanism by which the free market can preserve agriculture.” The Commonwealth Court held that based on Frederick and the Supreme Court’s decision in PEDF, that the Middlesex zoning ordinance did not violation Article 1, Section 27.
On July 26, the objectors continued the fight, filing a Petition for Allowance of Appeal with the Supreme Court.
The Delaware Riverkeeper decision is just the latest in a series of similar attacks that have been severely blunted by Frederick. The Commonwealth Court has scheduled oral argument in October to address these same claims in an appeal of a challenge to the Penn Township, Westmoreland County zoning ordinance that was rejected by the Westmoreland County Common Pleas Court. This month, the Murrysville Zoning Hearing Board is expected to render its decision in a validity challenge to Murrysville’s use of a zoning overlay district for mineral extraction. Finally, Washington County Common Pleas Court has scheduled a hearing for December of this year on a challenge to the Robinson Township, Washington County zoning ordinance. The irony is that Robinson Township was the named petitioner in the challenge to the provisions of Act 13 limiting the authority of local governments to regulate oil and gas development. After succeeding in having the Supreme Court invalidate those provisions, Robinson’s ordinance is now being challenged based on that decision for having an ordinance which objectors claim is too permissive with regard to the regulation of oil and gas development.
All of these substantive validity challenges do reveal one truth. Active engagement with the community and local officials must continue if the industry hopes to capture the momentum from the string of successes in the Supreme Court and Commonwealth Court. Confronting this narrative that natural gas development must be relegated to industrial areas cannot occur only in appellate courtrooms. By conducting safe operations, minimizing temporary inconveniences and by shouldering the burden of a defense when opponents attack local decisions, the energy sector can partner with local officials to optimize the rights of property owners to develop their mineral interests.
In all of the cases discussed in this article, an attorney for a production company stood with the municipal solicitor to defend the ordinance. This type of cooperation should be celebrated as a counterpoint to media portrayals trying to paint the industry and local government as constant adversaries.
For the full article, click here.
The Legal Intelligencer
(by Alexandra Farone)
As social media continues to play an ever-more prominent role in our culture, employers are frequently faced with the uncomfortable situation of encountering an employee’s social media post that, at best, reflects unfavorably upon the employer or, at worst, is outright harassment or discrimination. Pennsylvania court decisions on the intricacies or enforceability of employers’ social media policies are few and far between, and do not create particularly useful guidance for employers in navigating the minefield of social media. Without such clarity, employers are encouraged to be mindful when drafting, revising or enforcing these policies to ensure compliance with existing guidance.
While public employers face the unique challenge of balancing employees’ constitutional free speech rights against protection of the employer’s reputation, private sector employers must also consider federal law when drafting a social media policy. The National Labor Relations Act (NLRA) gives unionized and nonunionized employees the right to act together to address wages, hours, and the terms and conditions of employment. Such “protected, concerted activity” could come in the form of an employee’s social media post complaining about, for example, vacation time, inadequate supervision or perceived poor safety measures. As early as 2012, the National Labor Relations Board (the board) issued a decision finding that a Facebook conversation can be protected, concerted activity, see Hispanics United of Buffalo and Carlos Ortiz, 359 NLRB No. 37 (2012). To qualify for protection, the speech has to be more than “mere griping.” Moreover, if the speech is egregiously offensive or knowingly and maliciously false, or if it disparages the employer without relating complaints to a term or condition of employment, it will likely not be protected. If, however, the speech raises a concerted or group complaint about a term or condition of employment, the employer must take care not to discipline the employee in a manner that runs afoul of the NLRA.
The following tips should help minimize the risk of adverse action against an employer that encounters an issue stemming from its employees’ social media activity:
- Include the social media policy in an existing employee handbook. Employees should acknowledge in writing that they have read and that they understand the contents of the handbook, including social media policies. This is particularly important because these policies can apply to conduct and postings on the internet that occur outside of the workday and workplace. Such an acknowledgement could minimize an employee’s ability to persuasively claim he was unaware of the social media policy and its scope, or that he did not understand the policy.
- Prohibit “speaking on behalf of the company” in the manner of a de facto spokesperson without prior written authorization from management and the marketing team. However, do not categorically prohibit use of a company name or logo, as this could be overly broad and could affect NLRA-protected activity.
- Ban disclosure of trade secrets and other confidential information. This is particularly important if the employer does not have an existing nondisclosure policy or agreement with its employees. In their social media policies, employers should prohibit the disclosure of trade secrets and other confidential information.
- Prohibit harassment and discrimination. The same statements that would be prohibited and grounds for discipline if made in the workplace should be equally prohibited in the digital forum of social media. In their social media policies, employers should prohibit harassment and discrimination on the basis of race, ethnicity, national origin, sex, religion, age and disability, as well as additional state and local protected classes.
- Encourage civility and respect. This message should apply to employees’ interactions with customers, clients and coworkers alike. Civility can always be required, but vague policy language demanding respect, particularly for the company, could be found to be overly broad by the NLRB. Employees could interpret such phrasing to prohibit any and all criticism of supervisors or the company as a whole, including protected, concerted activity.
- Closely review controversial posts concerning the terms or conditions of employment. As stated, only certain conduct constitutes protected, concerted activity. Consider: whether the posting refers to hours, wages, management or supervisors, a problematic coworker, or other terms or conditions of employment; whether the post is directed to, “liked,” “reacted” to, or commented upon by other employees, or otherwise appears to be made on behalf of other employees in addition to the individual poster; and whether the post is egregiously offensive, or knowingly and maliciously false as evaluated based upon the expected scope of knowledge of the posting employee given his role and position. It is important to note that the NLRB has a high standard for egregiously offensive statements, and often finds traditionally profane or offensive conduct to be protected. Employers should consult counsel for assistance in determining whether a particular post triggers NLRA concerns.
- Be consistent with disciplinary measures. Employers should take care not to open themselves up to a discrimination suit by failing to discipline online harassment in the same manner by which they would discipline harassment that occurred in person. For example, if an employee of a protected class is terminated for making harassing posts on social media but an employee outside of that protected class is not terminated for similar postings, the employer could be susceptible to a disparate treatment claim.
- Establish that there is no expectation of privacy when using a company’s email address, email server or internet system. Always preserve evidence as soon as possible by, for instance, taking a screenshot or making a copy of the questionable post, as an employee can quickly delete a prior post or manipulate privacy settings to hide the post. Maintaining screenshots for the disciplinary process and to defend against any litigation commenced by the employee. Documented screenshots with time stamps, where possible, can bolster an employer’s argument that disciplinary action was made pursuant to legitimate, nondiscriminatory reasons.
Alexandra G. Farone is an associate in Babst Calland Clements & Zomnir’s litigation and employment and labor groups. She counsels corporate clients regarding employment matters including best practices and procedures, and compliance with the FLSA, ADA, ADEA and Title VII. Contact her at 412-394-6521 or afarone@babstcalland.com.
For the full article, click here.
Pipeline Safety Alert
(by James Curry, Keith Coyle and Brianne Kurdock)
On June 13, 2019, the Pennsylvania Public Utilities Commission (PAPUC) voted 5-0 to issue an Advance Notice of Proposed Rulemaking (ANOPR) soliciting public comment on whether to amend the pipeline safety requirements for public utilities that transport hazardous liquids. PAPUC is seeking input on the following topics within 60 days of the date the ANOPR is published, or by no later than August 28, 2019:
- Construction: Bare steel and vintage pipe, material and specification requirements for new and used pipe, depth of cover, underground clearance, valve location and spacing, and prior notification for construction activities.
- Operations and Maintenance: Pressure test requirements and frequency, line markers, right-of-way inspections, leak detection, odorant, emergency response, and public awareness.
- Corrosion Control: External and internal corrosion control measures, adequacy of cathodic protection, in-line inspections, and hydrostatic testing and pigging for assessing corrosion or cathodic protection.
- Other topics:
- Conversion of Service
- Emergency Flow Restricting Devices
- Operator Qualification
- Accident Notification
- Transparency and Protection for Security Information
- Horizontal Directional Drilling
- Geophysical Testing and Baselining
- Protecting Public and Private Water Wells and Supplies
- Eminent Domain
In issuing the ANOPR, PAPUC is taking an approach that is similar to the Pipeline and Hazardous Materials Safety Administration (PHMSA), which issued an Advance Notice of Proposed Rulemaking (ANPRM) in 2010 asking for public comment on whether to amend the federal safety standards for hazardous liquid pipelines. After reviewing the comments submitted in response to the ANPRM, PHMSA issued a Notice of Proposed Rulemaking (NPRM) in 2015 containing new safety standards addressing a number of topics. The Liquid Pipeline Advisory Committee, the federal advisory committee that reviews PHMSA’s proposed changes to the hazardous liquid pipeline safety regulations, reviewed the NPRM in 2016, and PHMSA expects to issue a final rule this year.
Although PAPUC has the authority to issue additional or more stringent safety standards for hazardous liquid pipelines operated by public utilities, the significant progress that PHMSA has already made in addressing the topics raised in the ANOPR, and the impending release of a final rule with new federal safety standards for hazardous liquid pipelines, raises some interesting considerations in this proceeding. PAPUC will need to consider the prior decisions that PHMSA has rendered in addressing many of these topics, including whether new regulations are justified. PAPUC will also need to consider whether any new safety standards are consistent with the preemption provision in the Pipeline Safety Act, which requires additional or more stringent state regulations to be consistent with PHMSA’s federal requirements.
Click here for PDF.
Natural gas production continues to increase in each of the nation’s seven largest shale basins
Babst Calland today released its annual energy industry report: The 2019 Babst Calland Report – The U.S. Oil and Gas Industry: Federal, State and Local Challenges & Opportunities; Legal and Regulatory Perspective for Producers and Midstream Operators.
In this Report, Babst Calland energy attorneys provide perspective on issues, challenges, opportunities and recent developments in the oil and gas industry that are relevant to producers and midstream operators.
According to the International Energy Agency, “the second wave of the U.S. shale revolution is coming” and the United States will account for a 70 percent increase in global oil production and a 75 percent expansion in LNG trade in the next five years.
On a year-over-year basis, natural gas production continues to increase in each of the seven largest shale basins in the United States. Most notably, oil and natural gas production is being driven by three of the largest producing basins including Appalachia in Pennsylvania, West Virginia and Ohio, the Permian Basin in Texas and New Mexico, and the Haynesville Basin in southwestern Arkansas, northwest Louisiana, and east Texas.
Joseph K. Reinhart, shareholder and co-chair of Babst Calland’s Energy and Natural Resources Group, said, “Domestic shale producers and operators continue to face myriad legal and regulatory challenges by regulatory agencies, the courts, activists, and the market. This annual review is a snapshot of the issues and trends on the federal, state and local level in the oil and gas industry over the past year.”
The 92-page Babst Calland Report covers a range of topics from the industry’s business outlook, regulatory enforcement and rulemaking to developments in pipeline safety and litigation trends. A few of the Report’s highlights include:
- The U.S. Department of Energy’s Energy Information Administration (EIA) reports both oil and dry natural gas production set U.S. records this year. Oil production hit 12.4 million barrels per day in May, natural gas soared above 90 billion cubic feet per day. U.S. production of gas liquids also set records and now account for over a quarter of U.S. petroleum product output.
- This year, the oil and gas industry received mixed messages regarding environmental matters. On the federal level, the Trump administration generally loosened regulatory and/or statutory constraints, such as narrowing the Clean Water Act definition of “Waters of the United States.” In contrast, at the state level, some agencies introduced or considered more rigorous standards, including Pennsylvania’s proposed cap-and-trade program.
- Public interest in pipeline safety has grown significantly in recent years. Consequently, operators’ installation of new pipeline infrastructure to transport energy products from the nation’s shale plays to domestic and foreign markets has resulted in increased scrutiny.
- In Pennsylvania, the contours of the Robinson Township II decision continue to be litigated and legislated by local governing bodies, while the Commonwealth Court provided clarity concerning a municipality’s right to determine the location of oil and gas operations. In West Virginia, the extent of a county government’s ability to investigate alleged nuisances is being considered in the state’s highest court. In Colorado, new legislation has empowered local governments to take a much more active role in regulating oil and gas development.
- Significant title issues concerning oil and gas property rights continue to be addressed in states in shale plays throughout the country. The desire to improve efficiencies has resulted in the use of allocation wells and cross unit drilling, particularly in Texas and Oklahoma.
- Nuisance claims, alleging that excessive noise, traffic, dust, light, air pollution and impaired water quality interfere with the use and enjoyment of private property, continue to be asserted across the shale plays.
- An increasing number of oil and gas companies recognize the advancements in commercial unmanned aircraft systems (UAS) technology and the utility and cost savings associated with using UAS to inspect and monitor assets such as pipelines and infrastructure.
After more than a decade, the shale gas industry continues to expand its reach and impact on our country’s energy supply and independence. Babst Calland’s Energy and Natural Resources attorneys support clients operating in multiple locations throughout the nation’s shale plays. To request a copy of the Report, contact info@babstcalland.com.
Pittsburgh Business Times and Houston Business Times
(by Patty Tascarella)
Babst Calland has opened its first Texas office via a merger with attorneys of The Chambers Law Firm, a firm based in Houston.
Les Chambers serves as managing shareholder of Babst Calland’s Houston office, which is located in The Woodlands.
Les Chambers, Ryan Chambers and Coleman Anglin have joined Babst Calland as shareholders, and Nataliya Tipton came aboard as an associate, according to a June 5 press release. They specialize in legal and regulatory matters related to oil and gas, property and transactional law as well as oil and gas title examination and analysis process for exploration and production companies in Texas, New Mexico, Oklahoma and the Appalachian Basin.
For the full Pittsburgh article, click here.
For the full Houston article, click here.
Energy Alert
(by Timothy Miller and Paul Atencio)
On June 5, 2019, the West Virginia Supreme Court issued its opinion in EQT Production Company v. Crowder affirming a decision of the circuit court of Doddridge County, holding that a surface tract cannot be used to produce minerals from neighboring lands in the absence of an agreement with a surface owner, even if the mineral owners/lessees agreed to pooling and unitization.
At the time that the century-old lease was executed, the lessor owned both the surface and minerals in fee. The minerals were later severed from the surface as subdivided tracts were conveyed as “surface only.” The plaintiff surface owners challenged use of their lands to drill horizontal wells extending beyond the limits of their property to produce and transport oil and gas to/from adjacent tracts.
The Circuit Court of Doddridge County agreed with the plaintiffs and entered an order granting partial summary judgment, finding EQT trespassed to the extent it used the plaintiffs’ surface lands to conduct operations under neighboring mineral estates.
The Court held that the long recognized implied right of a lessee to use so much of the surface as “reasonably necessary” to produce the minerals, was limited to use for production under the surface tract only; not neighboring lands, even if the mineral lessees had signed lease modifications allowing pooling and unitization. The appeal resulted from a trial court order finding that production companies do not have the right to produce pooled production through a surface drill tract without an express reservation in a severance deed or surface owner consent.
In its opinion the Court noted it did not decide the case on the “excessive use” claim, but limited it holding to trespass and property law claims. The court relied on a number of coal mining cases which have limited the right of operators to use leased tracts to transport coal from neighboring lands in the absence of an express agreement to do so.
A key takeaway from this decision is that an operator cannot rely on implied rights to use a surface owner’s property for development of minerals produced from pooled and unitized tracts when the surface and minerals are separately owned. This issue can be resolved by a carefully drafted surface use agreement containing language granting surface and subsurface easements for the development of oil and gas.
The Court’s decision regarding the right to produce oil and gas via pooling through a surface drill tract in the absence of an express grant or reservation to use the surface could create additional hurdles and costs for oil and gas operations, and will likely result in increased litigation.
For more information or to discuss implications of this decision, contact Timothy M. Miller at (681) 265-1361 or tmiller@babstcalland.com or Paul J. Atencio at (412) 253-8816 or patencio@babstcalland.com.
Click here for PDF.
Les Chambers, Ryan Chambers, Coleman Anglin and Nataliya Tipton Join the Firm’s Energy and Natural Resources Practice
Babst Calland today announced the opening of a new office in Houston, Texas, and merger with attorneys of The Chambers Law Firm, a prominent Houston law firm.
Les R. Chambers, Ryan A. Chambers, and Coleman G. Anglin join the Firm as shareholders, and Nataliya K. Tipton as associate.
These Houston-based attorneys represent clients on a variety of legal and regulatory matters, particularly in the areas of oil and gas, property, and transactional law and all aspects of oil and gas title examination and analysis process for exploration and production companies in the Mid-Continent (including Texas, New Mexico and Oklahoma) and Appalachian Basin.
Commenting on these developments, Donald C. Bluedorn II, managing shareholder of Babst Calland, said, “These highly-regarded oil and gas attorneys are a natural fit in advancing our Firm’s vision to continue to expand our geographic footprint to serve clients’ needs in the development of the Permian Basin and other major and emerging shale plays in the country.”
“Our nationally-recognized multidisciplinary team of experienced energy attorneys, along with the resources of our new Houston office, offer our clients exceptional regional and national legal representation to help navigate challenges and opportunities to succeed in the oil and gas industry.”
“We are very excited to be joining Babst Calland,” said Les Chambers. “The vast experience of our respective firms in the energy and natural resource sector, along with the diversity of practice areas and significant support staff at Babst Calland, will create a synergy that will greatly enhance the services we can provide to both our individual and mutual clients across the country.”
Les Chambers, the managing shareholder of Babst Calland’s Houston office, concentrates his practice in the areas of oil, gas and mineral title examination and opinions, oil and gas transactions, property law, as well as assisting clients on a wide range of energy matters including negotiating and drafting oil and gas contracts, leases, due diligence examination and analysis, pipeline acquisitions and surface use and seismic agreements.
Ryan Chambers, Coleman Anglin, and Nataliya Tipton also focus their practice on a wide range of oil, gas, and mineral-related matters including title opinions, title examination, due diligence, business and land transactions, operating agreements, litigation, and contractual and regulatory issues.
“The addition of our Houston office supports our strategy to expand Babst Calland’s team and capabilities to serve the needs of existing and new oil and gas clients in the Permian, San Juan, and Eagle Ford Basins as well as the Mid-Continent,” said Bruce F. Rudoy, Co-Chair of Babst Calland’s Energy and Natural Resources Practice Group.
The Firm’s new Houston, Texas office is located in The Woodlands, Texas.
Pipeline Safety Alert
(by James Curry, Keith Coyle and Brianne Kurdock)
On June 3, 2019, the U.S. Department of Transportation (DOT) sent a legislative proposal to Congress for reauthorization of the Pipeline and Hazardous Materials Safety Administration’s (PHMSA) pipeline safety program. If enacted and signed into law, the legislation would reauthorize PHMSA’s pipeline safety program for an additional four years, or through 2023.
As in previous reauthorizations, the bill includes provisions that respond to recent events—in this case, the September 13, 2018, natural gas distribution incident in Merrimack Valley, Massachusetts. Consistent with the Trump Administration’s broader policy agenda, the bill also includes provisions to promote innovation by supporting new technologies and enhancing pipeline safety and reliability.
The legislation addresses other areas of concern to the pipeline industry, such as requiring more timely review of technical standards and imposing additional criminal sanctions for pipeline vandalism. Finally, the bill includes rulemaking mandates that focus on items of importance to PHMSA—namely, expanding the operator qualification (OQ) program to pipeline construction and establishing regulations for inactive pipelines.
How does the DOT Pipeline Safety Bill Respond to the Merrimack Valley Natural Gas Distribution Incident?
- Secondary or Back-Up Overpressure Protection: Requires gas distribution pipeline operators to provide a secondary or back-up means of overpressure protection, which is capable of shutting the flow of gas or relieving gas to the atmosphere, for regulator stations serving low pressure distribution systems that use the primary and monitor regulator design.
- Management of Change: Permits PHMSA to require all pipeline operators
to prepare and implement pipeline tie-in procedures that address management of change and active monitoring of pressures and control of gas and liquid sources.
How does the DOT Pipeline Safety Bill Advance Industry Initiatives?
- Incentives for Exceeding Safety Standards: Permits PHMSA to provide non-financial incentives or recognition to pipeline operators who voluntarily exceed the minimum federal pipeline safety regulations.
- Pilot Program for Innovative Technologies: Authorizes PHMSA to establish pilot programs to exempt from regulation, for a period of no longer than seven years, innovative technologies that achieve a safety level equivalent to, or greater than, the level of safety that would be achieved through compliance with the regulations. This section also grants PHMSA authority to revoke participation or terminate the pilot program immediately if continuation would be inconsistent with the goals and objectives of the Pipeline Safety Act.
- $100,000 Property Damage Threshold: Updates the property damage threshold for pipeline operator incident reporting requirements to $100,000, with a requirement to adjust this threshold every two years to account for inflation. The current threshold, established in 1984, is $50,000.
- Pipeline Safety Requirements in Permits Issued by Other Federal Agencies: Prohibits federal agencies other than PHMSA and the Federal Energy Regulatory Commission from imposing pipeline safety requirements in permits that are different than PHMSA’s requirements.
- Incorporating New or Updated Industry Standards by Reference Every Two Years: Requires PHMSA to review and update currently incorporated and new industry standards every two years. If PHMSA decides not to incorporate a new or updated industry standard, PHMSA must provide an explanation.
- Additional Criminal Violations: Adds vandalizing, tampering with, impeding, disrupting, or inhibiting the operation of a pipeline facility, including facilities under construction, to the criminal penalties provision of the Pipeline Safety Act.
How does the DOT Pipeline Safety Bill Address Other PHMSA Priorities?
- Pipeline Construction Information Gathering Authority: Allows PHMSA to gather relevant information on pipeline construction projects and the shutdown of pipeline construction projects.
- Voluntary Information Sharing: Permits PHMSA to establish a voluntary information sharing (VIS) system that would include information such as pipeline integrity risk analyses (including information from in-line inspections and dig verification data), lessons learned, and process improvements. This provision supplements the PIPES Act of 2016 which required PHMSA to convene a working group on voluntary information sharing.
- Regulations for Inactive Pipelines: Directs PHMSA to establish regulations for pre-commissioned, active/in-service, inactive/out-of-service, and abandoned pipelines.
- Operator Qualification for New Construction: Authorizes PHMSA to extend OQ requirements to new construction.
- Records of State Inspections: Requires state authorities to provide records of inspections or investigations to PHMSA upon request.
- Cost Recovery for Design Reviews: Reduces the threshold for cost recovery of design reviews including for gas or liquid pipeline projects from $2.5 billion to $250 million. The proposed language would also allow PHMSA to collect the fees in advance of the design review.
- LNG Compliance Review Fee: Requires that operators pay a fee for PHMSA’s expenses in determining compliance of a liquefied natural gas facility with Part 193 in connection with an application to the Federal Energy Regulatory Commission.
What Questions Should Pipeline Operators Consider in Reviewing the DOT Pipeline Safety Bill?
- What kinds of non-financial incentives should PHMSA provide to operators who voluntarily exceed minimum regulatory requirements?
- What are the potential impacts of lowering the threshold for cost recovery of design reviews from $2.5 billion to $250 million? How will PHMSA calculate the costs of its design review in advance?
- Does the provision allowing immediate revocation of a pilot program for innovative technologies create due process concerns? Should pipeline operators be able to rely on these pilot programs when investing money and resources into developing and implementing innovative technologies?
Are statutory mandates for actions PHMSA can pursue under its current statutory authority necessary? What are the potential drawbacks of mandating action that PHMSA can currently take voluntarily?
Click here for PDF.
Employment & Labor Alert
(by Stephen Antonelli and Alexandra Farone)
Large and certain mid-size employers must provide demographic data to the EEOC by September 30, 2019 regarding the 2017 and 2018 earnings paid to employees categorized by sex, race, and ethnicity. On April 25, 2019, the U.S. District Court for the District of Columbia ordered the EEOC to collect two years of employers’ pay data by this September deadline, reviving an Obama-era regulation that was stayed by the Trump administration. This requirement will apply to all employers with at least 100 employees, and federal contractors with at least 50 employees.
For more than 50 years, the EEOC has required large and mid-size employers to submit an annual report known as the EEO-1 Report, which identifies the number of employed workers in job categories based on sex, race, and ethnicity. This data is now known as “Component 1” data. The Obama-era EEOC proposed requiring an additional component to this annual report that would require employers to disclose the earnings of these employees, in an effort to identify pay disparities. Known as “Component 2” data, the newly collected information should include employees’ W-2 earnings as well as hours worked in 12 pay bands for each of the 10 EEO-1 job categories. In 2016, the Office of Management and Budget approved the proposed requirement, and the requirement was slated to take effect in 2018. However, in 2017 the Trump administration stayed the implementation of this requirement, citing the burden of compliance upon employers. The validity of the stay on implementation of Component 2 data collection has been the subject of litigation since November 2017. The District Court vacated the stay in March 2019, and recently ruled to extend the Component 2 reporting deadline four months until September 30, 2019.
The Court’s ruling has no effect on the May 31, 2019 standard deadline for employers to submit their 2018 EEO-1 Reports for Component 1 data. Employers must submit their 2018 EEO-1 Reports by the end of May and are encouraged to begin compiling and planning to report 2017 and 2018 Component 2 data—specifically W-2 earnings and hours worked—for compliance with the September 30, 2019 deadline in the event that this deadline is not lifted pursuant to an appeal. The EEOC expects to begin collecting Component 2 data for calendar years 2017 and 2018 in mid-July 2019, and employers can likely expect a process similar to the manner in which they currently upload EEO-1 Reports annually.
Babst Calland’s Employment and Labor Group will continue to keep employers apprised of further developments related to this and other employment and labor topics. For more information about the EEO-1 Report and what is required of reporting employers, contact Stephen A. Antonelli at (412) 394-5668 or santonelli@babstcalland.com, or Alexandra G. Farone at (412) 394-6521 or afarone@babstcalland.com.
Click here for PDF.