The Legal Intelligencer
(by Casey Alan Coyle and Ryan McCann)
Pleadings are the opening act of litigation—setting the stage, defining the cast, and signaling the story to come. But Bernavage v. Green Ridge Healthcare Group, LLC, et al., No. 1576 MDA 2023 (Pa. Super. Ct.), which is pending on appeal before the en banc Superior Court, presents a plot twist: what happens when a plaintiff introduces an entirely new theory just as the curtain is about to fall and the house lights begin to rise? Specifically, the appeal poses the question of whether a plaintiff is permitted to amend her complaint in the middle of trial to add allegations of the defendants’ recklessness and request an award of punitive damages.
Standard to Amend Pleadings
Rule 1033 of the Pennsylvania Rules of Civil Procedure governs amended complaints. It states, in relevant part, that a party may amend a pleading—whether to “change the form of action, add a person as a party, correct the name of a party, or otherwise amend the pleading”— “at any time” “either by filed consent of the adverse party or by leave of court.” Pa.R.Civ.P. 1033(a). On its face, Rule 1033 does not impose a time limit on when a pleading such as a complaint must be amended. Indeed, the Superior Court has held that a complaint may be amended “at the discretion of the trial court after pleadings are closed, while a motion for judgment on the pleadings is pending, at trial, after judgment, or after an award has been made and an appeal take therefrom.” Biglan v. Biglan, 479 A.2d 1021, 1025–1026 (Pa. Super. Ct. 1984); see, e.g., Wilson v. Howard Johnson Rest., 219 A.2d 676, 679 (Pa. 1966) (amendments to pleadings “should be liberally granted at any stage of the proceedings” (citation and quotation marks omitted)).
That is not to say that the timeliness of a request to amend a pleading is wholly irrelevant. While the denial of a request to amend a pleading is an abuse of discretion when based on nothing more than unreasonable delay, see, e.g., Gutierrez v. Pa. Gas & Water Co., 507 A.2d 1230, 1233 (Pa. Super. Ct. 1986), the timeliness of the request is a proper consideration “insofar as it presents a question of prejudice to the opposing party.” Capobianchi v. BIC Corp., 666 A.2d 344, 347 (Pa. Super. Ct. 1995). The Pennsylvania Supreme Court has addressed prejudice in this context, writing:
If the amendment contains allegations which would have been allowed inclusion in the original pleading (the usual case), then the question of prejudice is presented by the Time at which it is offered rather than by the substance of what is offered. The possible prejudice, in other words, must stem from the fact that the new allegations are offered late rather than in the original pleading, and not from the fact that the opponent may lose his case on the merits if the pleading is allowed[.]
Bata v. Central-Penn Nat’l Bank of Phila., 293 A.2d 343, 357 (Pa. 1972) (citation and quotation marks omitted).
Applying that standard, Pennsylvania courts traditionally have looked unfavorably upon the late introduction of new theories of recovery. See, e.g., W. Penn Power Co. v. Bethlehem Steel Corp., 384 A.2d 144 (Pa. Super. Ct. 1975); Newcomer v. Civil Serv. Comm’n of Fairchance Borough, 515 A.2d 108 (Pa. Commw. Ct. 1986); Smith v. Athens Twp. Auth., 685 A.2d 651 (Pa. Commw. Ct. 1996).
The Bernavage Decision
The Bernavage case arose from a fall sustained by an elderly woman while being transferred at a long-term care facility. The woman subsequently passed away from unrelated causes. Thereafter, her daughter filed a professional negligence claim against two healthcare providers on her mother’s behalf. Notably, the complaint did not include any allegations of recklessness or willful or wanton misconduct. The matter was eventually tried to verdict before two different juries. During the first trial, the daughter elicited testimony from two of the defendants’ employees that the defendants’ conduct was reckless. The daughter then moved for a directed verdict on the issues of negligence and recklessness based on the employees’ admissions. The daughter also made a request to file an amended complaint to conform with the evidence elicited at trial, specifically, to characterize the defendants’ mental state as reckless and to make a claim for punitive damages. The trial court denied the daughter’s request for a directed verdict but granted her request for leave to file an amended complaint. In doing so, the trial court severed the issues related to the factfinder’s consideration of whether punitive damages should be awarded.
The first jury was asked to consider whether the defendants’ conduct fell below the standard of care, and if so, whether their negligence was a factual cause of the mother’s harm. The jury answered both questions in the affirmative and awarded the daughter $300,000 in compensatory damages. The jury was also asked two verdict interrogatories as to whether the defendants acted with the requisite state of mind that would allow for the recovery of punitive damages. The jury answered those questions in the affirmative as well. Based on that verdict, the pleadings were reopened, and the parties proceeded to conduct punitive damages discovery. At the ensuing second trial, the trial court required the parties to proceed using transcripts of the trial testimony for all witnesses called in the first trial; the only new evidence introduced was the wealth of the defendants and their ability to pay a punitive damages award. The second jury ultimately awarded the daughter $2.7 million in punitive damages—nine times the compensatory damages award. The defendants moved for judgment notwithstanding the verdict on punitive damages and the jury’s finding of negligence. The defendants also moved for a new trial. The trial court denied both requests.
On appeal, a Superior Court panel affirmed the award of compensatory damages but vacated the award of punitive damages. With regard to the punitive damages award, the panel determined that this was not a case where a plaintiff simply sought an amendment to conform the complaint to the evidence adduced at trial. “Rather,” the panel continued, “it was an introduction of a new theory of recovery,” because the specific theory of recovery to support the daughter’s punitive damages claim was “substantively different from the theory she developed during discovery and alleged in her complaint.” Bernavage, slip op. at 20. The panel held that this amounted to unfair surprise because, among other reasons, the daughter “never introduced the concept of recklessness into the case” “[i]n the three years prior”; the daughter’s counsel “introduced the concept of recklessness at the latest possible time—during day one of presentation of liability evidence”; “[t]he witnesses used the word reckless at counsel’s prompting”; and the daughter’s counsel “asked questions at trial that he could have, but did not, ask two years prior at the witnesses’ depositions.” Id. at 19, 21. In the process, the panel established the rule that “unfair surprise exists . . . where a negligence plaintiff, without explanation, withholds the precise theory of recovery until the latest possible time.” Id. at 21. The panel concluded its opinion by writing: “And while we ascribe no motive to [the daughter], to reach a different conclusion than the one we reach would be to invite negligence plaintiffs to withhold their theory of recovery, be it negligence, gross negligence, or recklessness, until the last possible minute for the specific purpose of creating unfair surprise.” Id.
The daughter moved for reargument en banc, which the Superior Court granted—resulting in the panel’s opinion being vacated. Briefing is underway, and it is anticipated that oral argument will take place before the en banc Superior Court in the spring of 2026.
What’s Next?
Depending upon how the en banc Superior Court rules, the impact of Bernavage could be far-reaching. Affirming the trial court in its entirety would, in practice, reintroduce trial by ambush, which the Pennsylvania Rules of Civil Procedure “were intended to prevent.” Clark v. Hoerner, 525 A.2d 377, 384 (Pa. Super. Ct. 1987); see Gregury v. Greguras, 196 A.3d 619, 628 (Pa. Super. Ct. 2018) (en banc) (“One of the primary purposes of discovery is to prevent surprise and unfairness of a trial by ambush, in favor of a trial on the merits.”). Plaintiffs would be incentivized to withhold their theory of recovery (and withhold their intention to seek punitive damages or possibly other damages) until the last possible moment, as noted by the panel.
Such a regime undoubtedly would unleash a series of preemptive measures by defendants, including filing motions in limine as a matter of course to bar plaintiffs from introducing evidence or argument on undisclosed theories of recovery or damages at trial to guard against last-minute amendments—although query whether such measures would prove effective if a plaintiff is automatically allowed to amend her complaint, in the middle of trial, to seek damages based on a previously undisclosed theory. Regardless, affirming the trial court, in full, would appear to raise due process concerns for defendants, particularly when punitive damages are sought. Such damages already “pose an acute danger of arbitrary deprivation of property,” Honda Motor Co. v. Oberg, 512 U.S. 415, 432 (1994), and that danger seemingly would be exacerbated if punitive damages could be introduced for the first time at trial.
Accordingly, the en banc Superior Court must decide in Bernavage whether a last-minute amendment of this magnitude belongs in the final act—or whether it impermissibly rewrites the performance after the audience is already waiting for the final bow.
—————–
Casey Alan Coyle is a shareholder at Babst, Calland, Clements and Zomnir, P.C. He focuses his practice on appellate law and complex commercial litigation. Coyle is a former law clerk to Chief Justice Emeritus Thomas G. Saylor of the Pennsylvania Supreme Court. Contact him at 267-939-5832 or ccoyle@babstcalland.com.
Ryan McCann is a litigation associate at the firm. He focuses his practice on complex commercial litigation, environmental litigation, and construction disputes. Contact him at 412-773-8710 or rmcann@babstcalland.com.
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Reprinted with permission from the December 4, 2025 edition of The Legal Intelligencer© 2025 ALM Media Properties, LLC. All rights reserved.
GO-WV
(by Steve Silverman and Katerina Vassil)
There has been much talk within the oil and gas industry about the potential for lithium extraction from produced water, a waste byproduct produced during hydraulic fracturing and drilling. Is this only talk, or are we approaching another extraction revolution? The answer is that the revolution is knocking on the door, but there remain significant practical and legal hurdles to overcome. To become viable, lithium extraction must become both economically and environmentally sustainable. Thus far, these technologies have not proven to be economically scalable, nor could their environmental impacts be justified.
The legal hurdles involving lithium extraction can be summed up in one question: Who owns the lithium? Is it the surface owner, the mineral owner (where the two differ), or the operator? As seen below, the standard lawyer answer applies: it depends.
Incentives for overcoming these hurdles could not be higher. Whoever masters lithium extraction technology from produced water will be able to name their own price for licensing that technology. Just as importantly, the oil and gas industry will be a major contributor to solving the obstacles currently facing the U.S. in sourcing lithium. Current U.S. dependence on foreign suppliers of lithium, especially China, raises significant geo-political concerns that can be cured by sourcing lithium domestically. Current estimates are that 40% of the country’s lithium needs are contained within the Appalachian Basin alone.
Lithium in Context
A. Lithium as a Commodity
Produced water contains a variety of constituents – sediment, salts, hydrocarbons, minerals, and metals. Lithium is one of these constituents, and when extracted and processed, lithium has numerous uses and applications.
Lithium batteries are used to power the cell phone or computer that you’re reading this article on, the alarm system that keeps your home safe, and the electric vehicle that you drive. Lithium batteries power medical devices like pacemakers. If you’re a golfer, your golf cart is likely powered by lithium batteries. If you’re an avid photographer, that digital camera that you use to take photos is powered by lithium batteries. As technology develops and improves, lithium batteries will continue to become even more ubiquitous. In fact, lithium consumption is expected to more than quadruple in the next ten years alone.
B. Lithium: Then & Now
In the 1990’s, the United States was one of the largest producers of lithium. Today, less than 2% of the world’s lithium is produced here. In 2022, the U.S. government designated lithium as a critical mineral, recognizing lithium as essential to economic and national security. The U.S. government has directed that all lithium be produced domestically by 2030, an unrealistic goal. In reality, the U.S. cannot meet current domestic lithium needs and must rely heavily on top producing nations like China, Chile, and Australia.
China currently dominates the lithium market, with vast reserves of lithium and a monopoly over both lithium processing and production of lithium batteries. The U.S government is determined to prioritize critical mineral resource initiatives and has dedicated billions of dollars towards processing lithium and other critical minerals for battery production, with the ultimate goal of reducing dependence on China and other nations. Additional funding has been allocated towards direct lithium extraction initiatives and lithium-ion battery plants.
C. Lithium in the U.S.
Despite the U.S. sourcing the vast majority of its lithium needs from foreign nations, there are numerous lithium sources in our own backyard. Yet, the Albermarle Silver Peak Mine in Nevada is the only active lithium producing mine in the U.S. This site utilizes direct lithium extraction and produces most of the less than 2% of the world’s lithium that comes from the U.S.
In 2024, scientists discovered a massive lithium deposit in wastewater from Marcellus Shale wells in Pennsylvania, with potential for even more in West Virginia and Ohio. As noted above, these untapped Marcellus Shale sources could contain enough lithium to meet up to 40% of current domestic needs.
Another recent discovery in the Smackover Formation in Southwestern Arkansas contains potentially 19 million tons of lithium. There currently is a new pilot lithium extraction site in Northeast Pennsylvania operated by Canadian company Avonlea Lithium. According to Avonlea, a pilot test conducted at this site in June 2025 yielded extremely promising results, producing lithium phosphate solids from produced water with a purity of 94.2% and a lithium recovery rate of 69.3%.
Additional lithium extraction methods currently being developed and refined include Solar Evaporation Brine Extraction, Direct Lithium Extraction, Solar Transpiration-Powered Lithium Extraction and Storage, and Redox-Couple Electrodialysis. However, seemingly successful processes like the “Closed Loop” process used at Eureka Resources’ site in Williamsport, Pennsylvania have faced significant challenges. This method was initially successful, extracting 97% pure lithium carbonate from oil and natural gas brine with an up to 90% success rate. But the plant was subsequently closed in 2024 and cited for numerous permit and OSHA violations, workplace safety issues, and environmental violations. This illustrates how some promising lithium extraction methods face significant scalability, economic, and environmental issues that may impede their viability.
D. Lithium Ownership: Title and Lease Rights
The starting point as to who owns the produced water’s lithium requires determining whether there has been a severance of the mineral rights. In other words, has a prior owner of those mineral rights somewhere in a chain of title reserved or retained ownership of those minerals in the course of transferring ownership of their surface rights. As with any title examination, the specific language in the severance deed determines exactly what the surface owner retained: minerals, oil, gas or some combination of the three.
If there has been a severance of the mineral rights, then it is unlikely that the current surface owners own the lithium under their property. More importantly, the current surface owners likely have no legal authority to lease the lithium to an operator. Thus, the operator must lease that lithium from its true “severed” owner instead.
But even if an operator has a lease with the lithium owner, they still may not have the right to extract it unless the lease’s granting clause arguably includes lithium. Granting clauses can contain a variety of terminology to identify what rights the lessor is being given. These include “oil,” “gas,” “their constituents,” “hydrocarbons” and even the generic “minerals.”
Note, however, that a “mineral” can have different legal definitions in different states. For instance, in Texas “mineral” includes oil, gas, uranium and sulphur. In both West Virginia and California, the definition is even broader and includes sand and gravel. Oklahoma defines only hydrocarbons as a mineral. Ohio excludes coal but includes oil and gas within its definition of a mineral, while Pennsylvania excludes both of those from its definition.
While no court has yet to explicitly rule on whether lithium is a mineral, that is the most likely conclusion, particularly since lithium is a metal and certainly not a hydrocarbon. Thus, unless a lease’s granting clause explicitly identifies lithium, it should at least include “minerals” if the lessor is to claim rights to the lessee’s lithium.
E. Rights to the Produced Water
So, is an operator who doesn’t own lease rights to lithium out of luck? The answer is maybe not because that operator may still be able to argue ownership of the produced water within which the lithium resides.
As of this writing, only one case has specifically addressed who owns the produced water. In June of this year, in Cactus Water Services, LLC v. COG Operating, LLC, the Texas Supreme Court held that produced water is a waste byproduct of the oil and gas drilling process “product stream” and therefore owned by the operator.
The facts of the case are somewhat involved, but can be simplified as follows: The operator, COG, had an oil and gas lease with the severed mineral owner. Cactus Water, however, entered into a “produced water lease” with the surface owner for the same acreage to pay royalties for monetizing that produced water. In contrast, COG’s lease made no mention of the produced water, yet it still claimed ownership of that water. The Texas Supreme Court agreed with COG. Yet it also noted that COG’s lessor could have expressly reserved ownership of the produced water in its lease.
The case’s unique facts, combined with the Court’s strained rationale behind its decision, raise doubts as to whether Cactus Water’s decision will be adopted in less oil and gas friendly states.
Takeaways
The economic and political upsides to lithium extraction are simply far too great to ignore. Investors are showing an increasing willingness to dedicate the necessary resources to overcome economic scalability and environmental sustainability challenges.
The legal impediments surrounding lithium should be easier to overcome. Operators must perform their title analysis with an eye specifically geared to determining lithium ownership rights. New leases must contain language explicitly granting rights to lithium. Where operators lack defensible positions that their existing leases grant such rights, they should consider lease amendments explicitly doing so. Where lithium remains owned by surface owners not subject to oil and gas leases, operators should enter into separate leases with those surface owners to monetize their produced water. Finally, all of these agreements and leases should plainly state that royalties paid for extracting lithium, as well as other possibly valuable constituents from produced water, must be paid on a net basis so an operator can deduct its extraction expenses.
Thus, there can be no doubt that the lithium extraction revolution is coming. The ability to successfully extract lithium from produced water is not a question of “if,” but rather of “when.”
Steven B. Silverman is a shareholder in the Litigation and Energy and Natural Resources groups of law firm Babst, Calland, Clements, and Zomnir, P.C. His practice focuses on commercial litigation, with an emphasis on natural gas title and lease disputes and other energy-related cases. Steve is licensed to practice law in Pennsylvania and Ohio. Contact him at 412-253-8818 or ssilverman@babstcalland.com.
Katerina P. Vassil is an associate in the Litigation Group of law firm Babst, Calland, Clements, and Zomnir, P.C. She represents clients in a variety of litigation practice areas, including commercial, energy and natural resources, environmental, and employment and labor. Katerina is licensed to practice law in Pennsylvania and Ohio. Contact her at 412-394-6428 or kvassil@babstcalland.com.
Click here, to view the article online in the December issue of GO-WV News.
FNREL Mineral and Energy Law Newsletter
Pennsylvania – Oil & Gas
(by Joe Reinhart, Sean McGovern, Matt Wood and Ethan Johnson)
In response to supply shortfalls due to data center demand, the largest regional transmissional operation in the United States, PJM Interconnection (PJM), has submitted its Expedited Interconnection Track (EIT) proposal to allow new generators to bypass the traditional interconnection queue. PJM is a regional transmission organization that coordinates the movement of wholesale electricity in 13 states and the District of Columbia. The EIT proposal operates in parallel to the standard PJM Cycle Process. PJM estimates a 10-month timeframe for the new, expedited process, whereas the standard Cycle Process can take up to four years or longer. PJM modified the EIT proposal based on stakeholder feedback, with key modifications including enhanced demand-side participation, better load forecasting, and improvements to the interconnection process. Eligible projects may be of any fuel type, but must:
- have a capacity larger than 500MW;
- be sponsored by a state within the PJM coverage;
- request Capacity Interconnection Rights simultaneously;
- achieve commercial operations within three years of submitting their application;
- submit a large non-refundable study deposit (> $500,000) and readiness deposit ($10k/MW); and
- provide three full years of site control for 100% of generating site & interconnection facilities at time of application.
If a project does not meet the eligibility criteria for the expedited track, an application may be submitted for the Cycle Process. Gas-fired generation made up 69% of the projects that PJM selected for interconnection review in May 2025. PJM forecasted that peak load across its footprint would grow 32 gigawatts (GW) from 2024 to 2030, with 30GW attributed to data centers. PJM also forecasts increased demand could lead to a 5% bill increase for rate payers by June 2026. PJM faces mounting pressure to curb rate increases. On November 5, 2025, Members of Congress representing the Mid-Atlantic region sent a letter to PJM urging more action to control increasing energy demand and electricity costs, primarily driven by data center growth.
Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
FNREL Mineral and Energy Law Newsletter
Pennsylvania – Oil & Gas
(by Joe Reinhart, Sean McGovern, Matt Wood and Ethan Johnson)
On September 11, 2025, the Pennsylvania Public Utility Commission (PUC), stressing the need to address aging infrastructure, approved a final order that will speed up the process of identifying and replacing older, at-risk plastic pipe materials in natural gas systems. The final order builds on the PUC’s August 26, 2024, tentative order on the same subject. Under the order, natural gas utilities must catalog older materials identified by federal authorities as being prone to cracking and add mitigation and replacement of these older materials to their management plans. Beyond that, the PUC’s Bureau of Technical Utility Services will require utilities to provide detailed inventories of older plastic pipes and components and explain how they will differentiate the older pipe from the newer pipe.
The PUC’s action comes after several advisory bulletins, dating back to 1998, issued by the U.S. Department of Transportation on pre-1982 plastic pipe materials and a 2023 bipartisan bill introduced to Congress aimed at addressing older piping known to fail. The bill, H.R. 5638, or the Aldyl-A Hazard Reduction and Community Safety Act, was introduced in response to the deadly 2023 natural gas explosion at the R.M. Palmer Co. chocolate factory in West Reading, Pennsylvania. The National Transportation Safety Board, which released its investigation report in March 2025, confirmed that the point of failure was from a retired 1982 service tee made from DuPont Aldyl-A plastic.
The PUC emphasized that utilities that failed to respond to data requests on this issue in the past will be referred for enforcement action. Speaking on the final order in the PUC’s announcement, PUC Chairman Stephen M. DeFrank said that “[s]afety is the foundation of our work as regulators and today’s action underscores the Commission’s commitment to addressing risks wherever they may be found—including in older plastic materials that have been linked to failures across the country.” The PUC acknowledged competing priorities and the high cost of replacing infrastructure, but made clear that the enhanced replacement efforts were necessary to safeguard the public.
Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
FNREL Mineral and Energy Law Newsletter
Pennsylvania – Oil & Gas
(by Joe Reinhart, Sean McGovern, Matt Wood and Ethan Johnson)
On September 9, 2025, the Pennsylvania Environmental Quality Board (EQB) elected to defer discussion on three pending rulemaking petitions pertaining to the oil and gas industry until its next meeting.
The first rulemaking petition, submitted by regional environmental groups the Clean Air Council and Environmental Integrity Project (Petitioners) in October 2024, asks the EQB to increase setback distances for new unconventional oil and gas wells. As previously reported in Vol. 42, No. 2 (2025) of this Newsletter, on April 8, 2025, the EQB tabled this petition for the stated reason of needing more time to review relevant materials. The proposed rulemaking would extend the existing 500-foot setback from buildings and personal-use water wells and 1,000-foot setback from water supply extraction points, both of which are waivable, to the following distances:
- 3,281 feet from any building or drinking water well;
- 5,280 feet from the property boundary of any building serving vulnerable populations, e.g., hospitals, schools, and daycare; and
- 750 feet from any surface water.
Petitioners’ proposed rule relies on the 2020 43rd Statewide Investigating Grand Jury Report, conducted while current Pennsylvania Governor, Josh Shapiro, was the Attorney General, that investigated impacts on Pennsylvania from the unconventional oil and gas industry as well as the Pennsylvania Department of Environmental Protection’s (PADEP) oversight of the industry. That report made eight recommendations, including increasing setbacks between unconventional gas operations and homes from 500 to 2,500 feet and schools and hospitals from 500 to 5,000 feet, arguing existing setbacks. In their proposed rulemaking Petitioners allege the existing setbacks are not protective of human health and the environment.
The second rulemaking petition, from Marcellus Shale Coalition (MSC), an Appalachian Basin industry group, pertains to setting attainable bottom well depth during orphan well plugging. The proposed amendments aim to clarify how attainable bottom is determined and how plugging should proceed after such a determination. Specifically, MSC proposes amendments to 25 Pa. Code § 78.1/78a.1, and § 78.91(c)/78a.91(c). The proposed amendment to § 78.1/78a.1 would add the following language:
[a]n operator shall be presumed to have made a reasonable effort to achieve the attainable bottom if the operator has cleaned out the well to at least 200 feet below the coal protective casing (or coal seam if no coal protective casing is present) or surface casing, whichever is deeper, and an additional 100 feet of well bore cannot be cleaned out within one 8-hour work shift.
The proposed amendment to § 78.91(c)/78a.91(c) states that after an operator notifies the Pennsylvania Department of Environmental Protection (Department) inspector that a “reasonable effort” has been made, “[a] cement plug of at least 50 feet will be set at the attainment bottom of the well bore,” the depth and efficacy of which will be confirmed after a sufficient time has elapsed, followed by plugging the remaining well bore. MSC asserts the proposed amendments would facilitate a more efficient and effective process for the successful plugging of more orphan and abandoned wells.
The third rulemaking petition, also from MSC, pertains to on-site processing of production wastewater. The proposed amendments aim to encourage the efficient reuse of fluids and increase the flexibility of the Department’s regulation of on-site fluid processing. Specifically, MSC proposes to amend 25 Pa. Code § 78a.58 as follows:
Onsite pProcessing and Storage
(a) The operator may request approval by the Department to process fluids generated by the development, drilling, stimulation, alteration, operation or plugging of oil or gas wells or mine influenced water at the well site where the fluids were generated or at a the well site where all of the fluid is intended processed or stored to be beneficially used to develop, drill, or stimulate a well at that or other well sites. . . .
MSC contends the amendment will maintain all safeguards while decreasing the need for fresh water, truck traffic, and storage tanks.
EQB canceled its October and November meetings, meaning the earliest it could consider these proposed rulemakings would be at its December 9, 2025, meeting.
Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
FNREL Mineral and Energy Law Newsletter
Pennsylvania – Mining
(by Joe Reinhart, Sean McGovern, Gina Buchman, and Christina Puhnaty)
On July 14, 2025, the Pennsylvania Department of Environmental Protection (PADEP) announced that it had reduced its permit backlog by 98% since November 2023, from over 2,400 permit applications to fewer than 50. See News Release, PADEP, “Getting Permitting Done: DEP Reduces Permit Backlog by 98% and Has Reviewed Nearly 20,000 Permit Applications So Far This Year” (July 14, 2025). Three of the six PADEP regional offices (Southwest, South Central, and Southeast) have entirely eliminated their permit backlogs. Three specific initiatives launched by the Shapiro administration have allowed PADEP to reach this milestone:
- PADEP’s modernization of its permit review process by investing in new technologies, including the Permit Tracker (established January 2025) that allows applicants and residents to monitor the progress of permits as they move through the review process.
- The PAyback program (established November 2023), which assures a moneyback guarantee for permit applicants if an application is not acted on by PADEP in a set time frame. Between January 1, 2025, and October 21, 2025, PADEP decided on 32,690 applications.
- The Streamlining Permits for Economic Expansion and Development (SPEED) Program (established July 2024), which began accepting applications on June 30, 2025, allows applicants of select permits to use approved qualified contractors to conduct expedited initial application reviews. PADEP reviews recommendations from the qualified contractor and makes the final decision to approve or deny the permit or issue a technical deficiency letter to the applicant.
On August 20, 2025, PADEP announced the availability of SPEED program review for permit applications in four additional areas: (1) air quality, (2) dam safety, (3) oil and gas well pad construction, and (4) wetland encroachment. See News Release, PADEP, “Shapiro Administration Continues to Move at the Speed of Business by Launching Additional SPEED Permits” (Aug. 20, 2025). With these additions, SPEED reviews are now available for the following permit types:
- Chapter 127 Air Quality Plan Approvals (state only);
- Chapter 105 Waterway and Wetland Encroachment permits;
- Chapter 105 Dam Safety permits;
- Chapter 102 National Pollutant Discharge Elimination System (NPDES) general permits (PAG-01 and PAG-02) for stormwater discharges associated with construction activities;
- Chapter 102 Individual NPDES Permits (previously available);
- Chapter 102 Erosion and Sediment Control Permits; and
- Chapter 102 Erosion and Sediment Control General Permit (ESCGP) for earth disturbance associated with oil and gas exploration, production, processing, or treatment operations or transmission facilities.
Reporting on prior milestones by PADEP in reducing permitting backlogs can be found in Vol. 42, No. 1 (2025) of this Newsletter.
Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
FNREL Mineral and Energy Law Newsletter
Pennsylvania – Mining
(by Joe Reinhart, Sean McGovern, Gina Buchman, and Christina Puhnaty)
On August 9, 2025, the Pennsylvania Department of Environmental Protection (PADEP) announced its intent to modify and reissue the National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Associated with Mining Activities (BMP GP-104). See 55 Pa. Bull. 5768 (Aug. 9, 2025). Under 25 Pa. Code § 92a.32, a mining operation is required to have an individual NPDES permit or coverage under a general NPDES permit if the site has expected or potential discharges associated with a mining operation that are composed entirely of stormwater. To be eligible for coverage under BMP GP-104, an operator must have a qualifying mining authorization (existing or pending), a mining license in good standing (or pending), and they must submit a complete notice of intent to PADEP’s local District Mining Office with a $250 fee. Mining authorization types eligible for BMP GP-104 coverage are coal and noncoal mining permits, small noncoal (and bluestone) permits, noncoal mining general permits, and coal and noncoal exploration activities.
PADEP’s current version of BMP GP-104 expires on March 27, 2026. PADEP plans to reissue BMP GP-104 with an effective date of March 28, 2026, and an expiration date of March 27, 2031. PADEP proposes only one substantive change to BMP GP-104: clarifying that certain permit types eligible for coverage under BMP GP-104 must meet the design standards in 25 Pa. Code ch. 102 (a two-year, 24-hour storm event) rather than the 10-year, 24-hour design storm event standard applicable to coal and large noncoal mines. This clarification applies to the following permits: Small noncoal; BMP GP-103 (Noncoal Short term construction); BMP GP-105 (Bluestone); BMP GP-106 (Reclamation of Forfeited Noncoal mines); and Government Financed Construction Contracts (GFCC). The comment period on the proposed permit closed on September 8, 2025.
Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
PIOGA Press
(by Steve Silverman and Katerina Vassil)
There has been much talk within the oil and gas industry about the potential for lithium extraction from produced water, a waste byproduct produced during hydraulic fracturing and drilling. Is this only talk, or are we approaching another extraction revolution? The answer is that the revolution is knocking on the door, but there remain significant practical and legal hurdles to overcome. To become viable, lithium extraction must become both economically and environmentally sustainable. Thus far, these technologies have not proven to be economically scalable, nor could their environmental impacts be justified.
The legal hurdles involving lithium extraction can be summed up in one question: Who owns the lithium? Is it the surface owner, the mineral owner (where the two differ), or the operator? As seen below, the standard lawyer answer applies: it depends.
Incentives for overcoming these hurdles could not be higher. Whoever masters lithium extraction technology from produced water will be able to name their own price for licensing that technology. Just as importantly, the oil and gas industry will be a major contributor to solving the obstacles currently facing the U.S. in sourcing lithium. Current U.S. dependence on foreign suppliers of lithium, especially China, raises significant geo-political concerns that can be cured by sourcing lithium domestically. Current estimates are that 40% of the country’s lithium needs are contained within the Appalachian Basin alone.
Lithium in Context
A. Lithium as a Commodity
Produced water contains a variety of constituents – sediment, salts, hydrocarbons, minerals, and metals. Lithium is one of these constituents, and when extracted and processed, lithium has numerous uses and applications.
Lithium batteries are used to power the cell phone or computer that you’re reading this article on, the alarm system that keeps your home safe, and the electric vehicle that you drive. Lithium batteries power medical devices like pacemakers. If you’re a golfer, your golf cart is likely powered by lithium batteries. If you’re an avid photographer, that digital camera that you use to take photos is powered by lithium batteries. As technology develops and improves, lithium batteries will continue to become even more ubiquitous. In fact, lithium consumption is expected to more than quadruple in the next ten years alone.
B. Lithium: Then & Now
In the 1990’s, the United States was one of the largest producers of lithium. Today, less than 2% of the world’s lithium is produced here. In 2022, the U.S. government designated lithium as a critical mineral, recognizing lithium as essential to economic and national security. The U.S. government has directed that all lithium be produced domestically by 2030, an unrealistic goal. In reality, the U.S. cannot meet current domestic lithium needs and must rely heavily on top producing nations like China, Chile, and Australia.
China currently dominates the lithium market, with vast reserves of lithium and a monopoly over both lithium processing and production of lithium batteries. The U.S government is determined to prioritize critical mineral resource initiatives and has dedicated billions of dollars towards processing lithium and other critical minerals for battery production, with the ultimate goal of reducing dependence on China and other nations. Additional funding has been allocated towards direct lithium extraction initiatives and lithium-ion battery plants.
C. Lithium in the U.S.
Despite the U.S. sourcing the vast majority of its lithium needs from foreign nations, there are numerous lithium sources in our own backyard. Yet, the Albermarle Silver Peak Mine in Nevada is the only active lithium producing mine in the U.S. This site utilizes direct lithium extraction and produces most of the less than 2% of the world’s lithium that comes from the U.S.
In 2024, scientists discovered a massive lithium deposit in wastewater from Marcellus Shale wells in Pennsylvania, with potential for even more in West Virginia and Ohio. As noted above, these untapped Marcellus Shale sources could contain enough lithium to meet up to 40% of current domestic needs.
Another recent discovery in the Smackover Formation in Southwestern Arkansas contains potentially 19 million tons of lithium. There currently is a new pilot lithium extraction site in Northeast Pennsylvania operated by Canadian company Avonlea Lithium. According to Avonlea, a pilot test conducted at this site in June 2025 yielded extremely promising results, producing lithium phosphate solids from produced water with a purity of 94.2% and a lithium recovery rate of 69.3%.
Additional lithium extraction methods currently being developed and refined include Solar Evaporation Brine Extraction, Direct Lithium Extraction, Solar Transpiration-Powered Lithium Extraction and Storage, and Redox-Couple Electrodialysis. However, seemingly successful processes like the “Closed Loop” process used at Eureka Resources’ site in Williamsport, Pennsylvania have faced significant challenges. This method was initially successful, extracting 97% pure lithium carbonate from oil and natural gas brine with an up to 90% success rate. But the plant was subsequently closed in 2024 and cited for numerous permit and OSHA violations, workplace safety issues, and environmental violations. This illustrates how some promising lithium extraction methods face significant scalability, economic, and environmental issues that may impede their viability.
D. Lithium Ownership: Title and Lease Rights
The starting point as to who owns the produced water’s lithium requires determining whether there has been a severance of the mineral rights. In other words, has a prior owner of those mineral rights somewhere in a chain of title reserved or retained ownership of those minerals in the course of transferring ownership of their surface rights. As with any title examination, the specific language in the severance deed determines exactly what the surface owner retained: minerals, oil, gas or some combination of the three.
If there has been a severance of the mineral rights, then it is unlikely that the current surface owners own the lithium under their property. More importantly, the current surface owners likely have no legal authority to lease the lithium to an operator. Thus, the operator must lease that lithium from its true “severed” owner instead.
But even if an operator has a lease with the lithium owner, they still may not have the right to extract it unless the lease’s granting clause arguably includes lithium. Granting clauses can contain a variety of terminology to identify what rights the lessor is being given. These include “oil,” “gas,” “their constituents,” “hydrocarbons” and even the generic “minerals.”
Note, however, that a “mineral” can have different legal definitions in different states. For instance, in Texas “mineral” includes oil, gas, uranium and sulphur. In both West Virginia and California, the definition is even broader and includes sand and gravel. Oklahoma defines only hydrocarbons as a mineral. Ohio excludes coal but includes oil and gas within its definition of a mineral, while Pennsylvania excludes both of those from its definition.
While no court has yet to explicitly rule on whether lithium is a mineral, that is the most likely conclusion, particularly since lithium is a metal and certainly not a hydrocarbon. Thus, unless a lease’s granting clause explicitly identifies lithium, it should at least include “minerals” if the lessor is to claim rights to the lessee’s lithium.
E. Rights to the Produced Water
So, is an operator who doesn’t own lease rights to lithium out of luck? The answer is maybe not because that operator may still be able to argue ownership of the produced water within which the lithium resides.
As of this writing, only one case has specifically addressed who owns the produced water. In June of this year, in Cactus Water Services, LLC v. COG Operating, LLC, the Texas Supreme Court held that produced water is a waste byproduct of the oil and gas drilling process “product stream” and therefore owned by the operator.
The facts of the case are somewhat involved, but can be simplified as follows: The operator, COG, had an oil and gas lease with the severed mineral owner. Cactus Water, however, entered into a “produced water lease” with the surface owner for the same acreage to pay royalties for monetizing that produced water. In contrast, COG’s lease made no mention of the produced water, yet it still claimed ownership of that water. The Texas Supreme Court agreed with COG. Yet it also noted that COG’s lessor could have expressly reserved ownership of the produced water in its lease.
The case’s unique facts, combined with the Court’s strained rationale behind its decision, raise doubts as to whether Cactus Water’s decision will be adopted in less oil and gas friendly states.
Takeaways
The economic and political upsides to lithium extraction are simply far too great to ignore. Investors are showing an increasing willingness to dedicate the necessary resources to overcome economic scalability and environmental sustainability challenges.
The legal impediments surrounding lithium should be easier to overcome. Operators must perform their title analysis with an eye specifically geared to determining lithium ownership rights. New leases must contain language explicitly granting rights to lithium. Where operators lack defensible positions that their existing leases grant such rights, they should consider lease amendments explicitly doing so. Where lithium remains owned by surface owners not subject to oil and gas leases, operators should enter into separate leases with those surface owners to monetize their produced water. Finally, all of these agreements and leases should plainly state that royalties paid for extracting lithium, as well as other possibly valuable constituents from produced water, must be paid on a net basis so an operator can deduct its extraction expenses.
Thus, there can be no doubt that the lithium extraction revolution is coming. The ability to successfully extract lithium from produced water is not a question of “if,” but rather of “when.”
Steven B. Silverman is a shareholder in the Litigation and Energy and Natural Resources groups of law firm Babst, Calland, Clements, and Zomnir, P.C. His practice focuses on commercial litigation, with an emphasis on natural gas title and lease disputes and other energy-related cases. Steve is licensed to practice law in Pennsylvania and Ohio. Contact him at 412-253-8818 or ssilverman@babstcalland.com.
Katerina P. Vassil is an associate in the Litigation Group of law firm Babst, Calland, Clements, and Zomnir, P.C. She represents clients in a variety of litigation practice areas, including commercial, energy and natural resources, environmental, and employment and labor. Katerina is licensed to practice law in Pennsylvania and Ohio. Contact her at 412-394-6428 or kvassil@babstcalland.com.
To view the full article, click here.
Reprinted with permission from the November 2025 issue of The PIOGA Press. All rights reserved.
TEQ Hub
(by Steve Silverman)
Employers often cling to misconceptions about non-compete agreements that can prevent them from effectively using these powerful tools or render such agreements unenforceable. Here are the seven most common reasons why this happens.
- Failing To Understand What Non-Competes Are
In the common vernacular, a non-compete is an umbrella term for contractually prohibiting an employee (or independent contractor, buyer of a business, or even a vendor) from working for a competitor or otherwise restricting that employee’s subsequent employment. However, a non-compete is one of several tools available to impose restrictions on an employee leaving their employer called “restrictive covenants.” A non-compete, which is just one type of restrictive covenant, limits a former employee or independent contractor from working for a competitor for a particular time period in a specific geographic area. A non-solicit agreement is another type of restrictive covenant, which allows an ex-employee to work for any employer they want without any geographic restriction but prohibits them from seeking business from their former employer’s customers for a period of time. Another variation of a non-solicit prohibits that ex-employee from hiring away or encouraging their former colleagues to leave their employment with their former employer. These are sometimes known as anti-piracy provisions. The distinctions between these various types of restrictive covenants are important. For instance, courts are generally more willing to enforce non-solicitation provisions than non-competes. Employers have to decide which, if not all, of these restrictive covenants work best for their business.
- Assuming That Non-Competes Are Unenforceable
A significant number of employers, as well as employees, incorrectly believe that restrictive covenants such as non-competes are categorically unenforceable. While this can be true for certain classes of employees (as discussed below), this misconception cannot be further from the truth. This mistaken belief is often fueled by employees who see their employer’s refusal or unwillingness to enforce them when their colleagues subject to these agreements depart without consequence. Additionally, restrictive covenants over the last two years received a lot of publicity with the Federal Trade Commission’s efforts during the last administration to effectively outlaw them, but that effort has been abandoned. As a result, unless a state has passed a law prohibiting or significantly restricting the use of non-compete agreements, courts in most states continue to enforce non-competes and other restrictive covenants every day – provided that they are properly drafted and effectively prosecuted.
- Not Understanding the Need for A Well-Drafted Non-Compete Agreement
A restrictive covenant agreement must be drafted to meet the unique needs of each employer. Such an agreement must be the product of a collaborative effort with an experienced attorney who understands the employer’s business. There is no downloadable form from the internet that meets every employer’s requirements. For instance, if the employer has employees working in multiple states, multiple versions of the agreements may be needed to address each state’s unique restrictive covenant laws. As explained below, different agreements may be needed for new employees versus existing employees whom the employer seeks to restrict. An employer’s agreements must also be periodically updated to address developments in the law.
- Not Supporting Restrictive Covenants With Adequate Consideration
An enforceable restrictive covenant agreement must be supported by “adequate consideration.” Consideration is an exchange of value between two parties necessary to make a contract binding. It is the “price” each party pays in exchange for the other party’s promise. What constitutes “adequate” consideration for non-competes can vary by state. For instance, nearly all states recognize that new employment is sufficient consideration to support such agreements. In other words, the employee’s “price” for getting a new job is agreeing to the restrictive covenants. However, states take different views as to whether continued employment is adequate consideration. For instance, Ohio deems that an already existing employee signing a non-compete has been given sufficient consideration because that employee gets to keep their job. But Pennsylvania says that for an existing employee to sign an enforceable non-compete, mere continuation of employment is not sufficient consideration. Instead, that Pennsylvania employee must be given some type of additional consideration – like a one-time bonus or additional benefits they would not otherwise be entitled to, or even a promotion. That is why Pennsylvania employers may have to use two versions of their non-compete agreements – one for new hires and another for existing employees. To navigate this issue, employers should always consult with counsel.
- Not Understanding What Protectible Interests Are
For a restrictive covenant agreement to be enforceable, an employer must have legitimate protectible interests. Essentially, this means that the law recognizes that certain employer property, both tangible and intangible, can be protected by restrictive covenants to prevent those interests from ending up in the hands of a competitor. This includes the company’s proprietary information, trade secrets and customer goodwill. However, the law says that only those employees who have access to those trade secrets or who are responsible for cultivating and maintaining that goodwill (such as sales people) can be subject to such agreements. That is why these agreements are not typically enforceable against receptionists, secretaries, mail clerks, or janitors. So, employers must be selective as to whom they require such agreements from and be able to justify how their protectible interests will be harmed by those employees failing to honor those agreements. This also requires employers to justify why their non-compete agreements need to extend for a particular length of time and geographic region without being overbroad, which courts dislike. Again, these are issues that employers must hash out with their counsel who draft these agreements.
- Failing to Incorporate Non-Competes into Employee On-Boarding and Off-Boarding
Employers must create a culture where their employees understand not only what their restrictive covenants are, but also that they must comply with them. Educating an employee about their post-employment obligations should start before that employee begins work. Employers should issue offer letters that clearly state that employment is contingent upon agreeing to the restrictive covenants. A copy of the non-compete agreement should be provided for the employee to sign prior to their first day of employment so that the employee cannot later argue that they did not know the type of post-employment restrictions they were agreeing to when they accepted their position. Simply put, no employee should start work before signing their agreement. Similarly, employees must be reminded of their post-employment obligations during their exit interviews upon giving notice and should be given a hard copy of the agreement at that time. Employers should also ask their departing employees point blank (a) who their new employer is; (b) what their duties will be; and (c) whether they have given their new employer a copy of the agreement. An employee refusing an exit interview or refusing to answer any of these questions should set off an alarm resulting in a consultation with counsel. If no exit interview is held, employers should still make clear in writing that they expect the employee to honor their agreement and also make sure to provide that employee with a copy, whether by mail, hand delivery, or email to a personal email address.
- Failing to Enforce A Non-Compete Through Litigation
While filing suit to enforce a non-compete can be both expensive and time consuming, failing to do so can be even worse in the long run. Those employers who do not enforce restrictive covenant agreements lose credibility among their employees and any deterrent effect that strong, enforceable agreements typically create. An employer who avoids the missteps above and places themselves in the best possible position to enforce these agreements protects their most valuable business interests. Likewise, an employer willing to enforce these agreements sends an unmistakable message to remaining employees that the employer expects them to honor their restrictive covenants and that they will pay a high price for not doing so. This often requires employers to make it abundantly clear that they are willing to do what is necessary to enforce their agreements. That message is often enough to dissuade the next departing employee from violating their post-employment obligations.
Dispelling these misconceptions is the first step in adopting and enforcing effective restrictive covenants to protect an employer’s most valuable assets.
For more than 30 years, Steve Silverman has built a career around this area of law—successfully enforcing non-compete agreements on behalf of his clients against former employees, while also defeating enforcement efforts on behalf of departing employees and their new employers.
If you have questions about the use of non-competes under existing state law or how to properly enforce them, please contact Steve at 412-253-8818 or ssilverman@babstcalland.com.
To view the full article, click here.
Environmental Alert
(by Sloane Wildman and Ethan Johnson)
On November 10, 2025, EPA announced a proposed revision to regulations issued under Toxic Substances Control Act (TSCA) Section 8(a)(7), which would reduce certain per and polyfluoroalkyl substance (PFAS) reporting requirements for manufacturers and importers. The regulation was promulgated in October 2023 under the prior Administration and requires manufacturers and importers of PFAS in any year between 2011–2022 to report data on exposure and detrimental effects to EPA. In proposing this revision, EPA noted its reliance on Executive Order 14219, entitled “Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulatory Initiative,” which directs each agency to review and rescind existing rules based on consistency with the agency’s best reading of the governing statute, Administration policy, and cost-benefit balancing principles. EPA Administrator Lee Zeldin estimated the existing rule would have cost American businesses $1 billion in total to comply.
Specifically, EPA’s proposed revision would exempt reporting on PFAS manufactured (including imported) in mixtures or products at concentrations of 0.1% or lower. It would also exempt imported articles, certain byproducts, impurities, research and development chemicals, and non-isolated intermediates from reporting. The revision also includes technical corrections that would clarify what must be reported in certain data fields and adjust the data submission period. Notably, however, the revision will not change the 2011–2022 reporting timeframe. The proposed rule has not yet been published in the Federal Register, but once published EPA will accept comments on the proposed changes for 45 days after publication.
Babst Calland’s Environmental Practice Group is closely tracking EPA’s PFAS actions, and our attorneys are available to provide strategic advice on how developing PFAS regulations may affect your business. For more information or answers to questions, please contact Sloane Wildman at (202) 853-3457 or swildman@babstcalland.com, Ethan Johnson at (202) 853-3465 or ejohnson@babstcalland.com, or your client service attorney at Babst Calland.
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FNREL Water Law Newsletter
(by Lisa Bruderly, Mackenzie Moyer and Ethan Johnson)
On August 21, 2025, the Pennsylvania Department of Environmental Protection (DEP) announced that companies may now request expedited permit application reviews under the Streamlining Permits for Economic Expansion and Development (SPEED) program. DEP likened the new program to an amusement park “fast pass.” Eligible permit types for the SPEED program include:
- Air Quality plan approvals (state only) (Chapter 127)
- Earth Disturbance permits (Chapter 102)
- Individual NPDES Permit
- General NPDES Permit for Discharges of Stormwater Associated with Small Construction Activities (PAG-01)
- General NPDES Permit for Discharges of Stormwater Associated with Construction Activities (PAG-02)
- Erosion and Sediment Control Permit
- Erosion and Sediment Control General Permit for Earth Disturbance Associated with Oil and Gas Exploration, Production, Processing or Treatment Operations or Transmission Lines (ESCGP-4)
- Individual Water Obstruction and Encroachment permits for project impacts eligible for coverage under the federal/state programmatic permit (PASPGP-6 or its successor) (Chapter 105)
- Dam Safety Permits (Chapter 105)
After submitting a SPEED intake form, the appropriate office will schedule and hold an intake meeting with the applicant within two to three business days.
The applicant will then have the opportunity to select a DEP-approved qualified professional to conduct the expedited review of the application. Among other qualifications, the professional must have at least five years of relevant permitting experience in Pennsylvania. The applicant must pay the qualified professional the review fee up front. The qualified professional must complete the initial review within 20% of the total review timeframe in the project work order, or another agreed upon timeframe.
DEP will conduct a final review of the permit based on the recommendations of the qualified professional and issue a permit decision. More information, including a flow chart of the full process under the SPEED program, is available on DEP’s website here.
Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
FNREL Water Law Newsletter
(by Lisa Bruderly, Mackenzie Moyer and Ethan Johnson)
On September 6, 2025, the Pennsylvania Department of Environmental Protection (DEP) published the Proposed Conditional State Water Quality Certification for the PASPGP-7 (SWQC), 55 Pa. Bull. 6477 (Sept. 6, 2025). The proposed conditional SWQC is for applicants seeking coverage under PASPGP-7 (the U.S. Army Corps of Engineers (Corps) Pennsylvania State Programmatic General Permit) for projects that do not require a federal license or permit other than a section 404 permit under the Clean Water Act (CWA). Comments on the SWQC were due by October 6, 2025.
DEP offered four main conditions, summarized below, that, if fulfilled, would demonstrate that a proposed activity under PASPGP-7 would comply with state water quality standards and certain provisions of the CWA:
- Prior to beginning any activity authorized by the Corps under PASPGP-7, the applicant must obtain all necessary environmental permits or approvals and submit all required environmental assessments and other information necessary to obtain the permits and approvals.
- The applicant must comply with required environmental assessments and other regulatory requirements.
- Fill material may not contain any type of waste as defined in 35 Pa. Stat. § 6018.103 of the Solid Waste Management Act.
- Applicants and projects eligible for the PASPGP-7 must obtain all state permits or approvals, or both, necessary to ensure that the project meets the state’s applicable water quality standards, including a project-specific SWQC, if needed.
As background, PASPGP-7 allows applicants to obtain both Corps section 404 permits and coverage under DEP permits or other authorizations for water obstructions and encroachments submitted to the DEP and for projects requiring permits or authorizations in this Commonwealth. Section 401(a) of the CWA requires an applicant seeking coverage under PASPGP-7 to provide the Corps with certification from DEP that its discharge will comply with the applicable provisions of the CWA. This proposed conditional SWQC applies to activities that qualify for PASPGP-7 within the jurisdiction of section 404 and also structures or work in or affecting navigable waters of the United States under section 10 of the Federal Rivers and Harbors Appropriation Act of 1899.
The current PASPGP-6 expires on June 30, 2026, and, at present, the draft PASPGP-7 stands to take its place, with possible revisions from the proposed draft. The proposed changes in PASPGP-7 include the following:
- Adds 0.03-acre area of permanent stream impact measurement in addition to the 250-linear-feet of permanent stream impact, whichever is less, for reporting (Corps review) threshold. A permanent loss of 0.03-acre area of stream may then require compensatory mitigation on a case-by-case basis.
- Adds a reporting threshold of 1,000-linear-feet of permanent stream impacts for PASPGP-7 applications for DEP General Permit-1 (GP-1) (Fish Habitat Enhancement Structures).
- Removes the table of waterways potentially occupied by federally listed, proposed, or candidate species of mussels or fishes from reporting activities, as they are to be included in the Pennsylvania Natural Diversity Inventory Environmental Review.
- Adds that all regulated work within the Delaware Canal is a reporting activity to ensure compliance with the Wild and Scenic Rivers Act.
- Adds the ability for the Corps to waive the eligibility threshold for emergency activities, as defined in PASPGP-7, on a case-by-case basis. The reporting threshold of 0.50-acre of permanent impact remains unchanged.
- Adds a general or project-specific section 401 Water Quality Certificate as a type of state authorization to General Condition 29 (State Authorization).
- Extends the General Condition 33 (Anadromous Fish Waters) time of year work restriction, from March 15–June 30 to March 1–June 30.
Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
The Legal Intelligencer
(by Steve Korbel, Anna Hosack and Peter Zittel)
Social media has become the modern town square for many public officials. Whether it’s sharing a recap of a school board meeting, celebrating a community event, or commenting on local issues, platforms like Facebook and Instagram are now a routine part of how leaders connect with their constituents. But what happens when those online conversations intersect with Pennsylvania’s Right-to-Know Law, 65 P.S. § 67.101, et seq. (the “RTKL”)? The Pennsylvania Supreme Court considered this question recently in Penncrest School District v. Cagle, 341 A.3d 720 (Pa. 2025), a case that sheds new light on how personal social media use by public officials can blur into the purview of the RTKL.
In May 2021, controversy arose in the Penncrest School District (“Penncrest”) after a high school library display included several books addressing LGBTQ+ issues. A third-party contractor photographed the display and posted it to Facebook, where a school board member shared the image on his personal account, adding comments denouncing the display as “evil” and suggesting he would raise the issue at a future school board meeting. Another board member also shared the post without commentary. The incident drew local media coverage, and a resident, Thomas Cagle, filed a request under the RTKL seeking school board members’ emails and social media posts related to the incident. While Penncrest released some district emails, it denied the request for board members’ social media posts, arguing that such content came from personal accounts. Cagle appealed to the Pennsylvania Office of Open Records, which granted his request, reasoning that the board members’ posts directly related to district business, citing prior cases that emphasized substance over account ownership.
Penncrest petitioned for judicial review, arguing that personal Facebook posts fell outside the RTKL’s definition of “records.” The trial court disagreed, holding that posts by elected officials about school activities, even on personal accounts, could constitute public records because they involved district business. The trial court found that the board member’s comments about the library display were made in his official capacity and, therefore, subject to disclosure. Penncrest appealed, and in 2023, the Commonwealth Court, sitting en banc, vacated the trial court’s decision. While acknowledging that, under the RTKL, the analysis regarding the disclosure of social media posts as public records lacked clear precedent, the Commonwealth Court crafted a framework that considers factors such as whether the account bore the “trappings” of an official page and whether the posts evidenced agency activity. Concluding that the trial court’s analysis was too narrow, the Commonwealth Court remanded the case for further factual development. The Pennsylvania Supreme Court later granted review to decide whether the RTKL requires disclosure of school board members’ social media posts on private accounts about official school matters.
Writing for the majority, Justice Mundy reaffirmed that the RTKL provides a single, uniform definition of a “record” and established that courts must apply the statute’s two-part test to all forms of communication, including social media posts. Under Section 102 of the RTKL, a record is information that (i) “documents a transaction or activity of an agency” and (ii) is “created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency.” The Court emphasized that the statute’s plain language is unambiguous: “[t]hese provisions, unambiguous on their face, provide for a two-part inquiry that applies equally to all forms of communication, including Facebook posts.” The central question in this case was whether Facebook posts made by Penncrest school board members about a controversial LGBTQ+ book display in a school library were records “of the agency” and thus subject to disclosure. While the trial court had found that they were, the Commonwealth Court remanded the case, holding that the trial court’s analysis was incomplete. The Supreme Court ultimately agreed that additional fact-finding was necessary.
Notably, the Court clarified that it was not adopting a new, social-media-specific test but rather requiring courts to apply the established RTKL framework in a context-sensitive manner. As the Court explained, whether something is “of an agency” is a “fact-specific inquiry” and must consider the substance and circumstances of the communication rather than its platform or location. Quoting earlier precedent, Grine v. County of Centre, 138 A.3d 88 (Pa. Cmwlth. 2016), the Court noted: “The location of the record or an agency’s possession does not guarantee that a record is accessible to the public; rather, the character of the record controls.” To make this determination, courts may consider several relevant factors, including whether the official was acting in an “official capacity,” whether the account had the “trappings” of an official agency account, whether the posts were created, received, or retained in connection with agency business, and whether the content “prove[s], support[s], or evidence[s]” agency activity.
The Court also invoked a vivid analogy from the U.S. Supreme Court’s decision in Lindke v. Freed, 601 U.S. 187 (2024): was the official speaking “at the meeting” or “at the backyard barbecue”? That framing highlights the key distinction between a personal viewpoint and agency business. In practice, when an official uses their account to recap votes, announce decisions, or provide role-related updates, they cross into the realm of public records subject to disclosure.
The Court stressed the importance of analyzing the context of social media posts, given that “many use social media for personal communication, official communication, or both—and the line between the two is often blurred.” Ultimately, the Court held that the Commonwealth Court properly remanded the case for further proceedings under the traditional two-part test, concluding: “Today, we reaffirm that this two-part inquiry is the only test to be utilized when determining whether disclosure of information, regardless of its form, is required under the statute.”
The Penncrest decision carries significant implications for transparency, governance, and the conduct of public officials in Pennsylvania. First, it confirms that the RTKL is flexible enough to adapt to evolving technologies without the need for judicial invention of new tests. The statute’s definition of “record” applies across all media, ensuring that public access does not depend on the platform used. Second, the opinion underscores the importance of context. Public officials can no longer assume that personal accounts are immune from disclosure simply because they are labeled “private.” If those accounts are used to announce, explain, or document agency action, their contents may be subject to public access under the RTKL. At the same time, purely personal posts, such as family photos, vacation updates, or unrelated commentary, remain outside the statute’s scope. Third, the case highlights the ongoing tension between transparency and privacy in the digital age. The Court’s refusal to create bright-line rules reflects an appreciation for that complexity. Instead, the decision leaves lower courts with discretion to make case-specific judgments, guided by the statutory test and informed by contextual factors. This approach ensures flexibility but may also generate continued litigation as courts and agencies apply the standard in varied circumstances. Finally, the decision places responsibility on public officials to exercise caution in their use of social media. The line between personal and official capacity can be blurred, and posts made casually can later become the subject of public records requests. Agencies may wish to adopt clearer policies for officials’ use of social media, both to protect transparency and to provide guidance to employees navigating these boundaries.
For Pennsylvania’s local municipalities, authorities, counties, and its elected and appointed officials, employees, and citizens, the message is clear: the principles of open government remain constant even as technology changes the way communication occurs with the public. In Justice Mundy’s words, “[t]hese statutory requirements are the touchstone,” and they will guide courts in ensuring that the public continues to have meaningful access to government records in the digital era.
Stephen L. Korbel is a shareholder in the Public Sector Services and Employment and Labor groups of Babst Calland Clements & Zomnir. Contact him at 412-394-5627 or skorbel@babstcalland.com.
Anna R. Hosack is an associate at the firm, focusing her practice primarily on real estate, municipal, and land use law. Contact her at 412-394-5406 or ahosack@babstcalland.com.
Peter D. Zittel is an associate at the firm, focusing his practice primarily on municipal and land use law. Contact him at 412-773-8711 or pzittel@babstcalland.com.
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Reprinted with permission from the October 20, 2025 edition of The Legal Intelligencer© 2025 ALM Media Properties, LLC. All rights reserved.
TEQ Hub
(by Kristen Petrina)
Due to the lack of a United States national data privacy law, the EU-U.S. have attempted to create a legal framework that permits a streamlined, regulated, and sufficient data transfer framework. Since 2015, three different data transfer agreements between the European Union and the United States were introduced. All three have faced challenges due to concerns the data transfer agreements did not provide adequate protections for EU citizens’ data from U.S. government surveillance.
The first data transfer agreement implemented but was found to be inadequate and invalidated in 2015 by the EU’s Court of Justice was the EU-U.S. Safe Harbor framework, which was deemed insufficient for protecting EU citizens’ personal data and fundamental rights, particularly in light of revelations about U.S. surveillance programs. The second data transfer agreement implemented but ultimately found to be inadequate and invalidated in 2020 by the EU’s Court of Justice was the EU-U.S. Privacy Shield framework, which was deemed to not offer the same level of protection as the GDPR. In particular, the framework did not adequately protect EU citizens’ data from U.S. government surveillance. The EU-U.S. Safe Harbor and EU-U.S. Privacy Shield frameworks were challenged by Maximiliam “Max” Schrems and his data privacy rights organization NOYB – European Center for Digital Rights (NOYB). The challenges are referenced as Schrems I and Schrems II cases, respectively.
The third data transfer agreement implemented was the Data Privacy Framework (DPF). The EU-U.S. DPF was challenged by Latombe citing, among other claims, the U.S. Data Protection Review Court lacked true independence and impartiality, established as a key redress pillar under the DPF, and the sufficiency of safeguards governing bulk data collection by U.S. surveillance and intelligence agencies without prior authorization from EU citizens and lacked adequate oversight. The concerns were consistent with those raised in the Schrems I and Schrems II cases. Nevertheless, the European General Court dismissed Latombe’s actions in its entirety, upholding the European Commission’s adequacy decision.
The Latombe judicial challenge against the EU-U.S. Data Privacy Framework has been stopped by the European General Court. The ruling on September 3, 2025, conflicted with previously attempted EU-U.S. data transfer frameworks. The court dismissed the challenge brought by Philippe Latombe, Member of French Parliament (Latombe) to annul the DPF and reinforced the DPF’s validity of the European Commission’s adequacy determination for the U.S.
Data Privacy Framework
The most recent data transfer agreement between the EU-U.S. is the Data Privacy Framework (DPF). The DPF includes three different frameworks: (i) EU-U.S. Data Privacy Framework (EU-U.S. DPF), (ii) the UK Extension to the EU-U.S. Data Privacy Framework (UK Extension to the EU-U.S. DPF), and (iii) the Swiss-U.S. Data Privacy Framework (Swiss-U.S. DPF). The DPF was developed to alleviate challenges faced by transatlantic commerce of U.S organizations. The DPF provides U.S. organizations with reliable mechanism that are consistent with EU, UK, and Swiss law for personal data transfers to the U.S. from the European EU (EU) and European Economic Area (EEA), the United Kingdom and Switzerland.
U.S. organizations participating in the EU-U.S. DPF may receive personal data from the EU/EEA in reliance on the EU-U.S. DPF after the European Commission issued the U.S. adequacy decision on July 10, 2023 ((EU) 2023/1795). The adequacy decision enables the transfer of EU personal data to participating organizations consistent with EU law. U.S. organizations participating in the UK Extension to the EU-U.S. DPF may receive personal data from the United Kingdom and Gibraltar in reliance on the UK Extension to the EU-U.S. DPF. The data bridge for the UK Extension to the EU-U.S. DPF enables the transfer of UK and Gibraltar personal data to participating organizations consistent with UK law. Lastly, U.S. organizations participating in the Swiss-U.S. DPF may receive personal data from Switzerland in reliance on the Swiss-U.S. DPF, due to Switzerland’s recognition of adequacy for the Swiss-U.S. DPF. The recognition of adequacy enables the transfer of Swiss personal data to participating organizations consistent with Swiss law.
U.S. organizations must self-certify to the International Trade Administration (ITA) within the U.S. Department of Commerce their compliance to each DPF framework. Organizations that only wish to self-certify and participate in the EU-U.S. DPF and/or the Swiss-U.S. DPF may do so; however, organizations that wish to participate in the UK Extension to the EU-U.S. DPF must participate in the EU-U.S. DPF. Once such an organization self-certifies to the ITA, the organization declares its commitment to the DPF Principles, that commitment is enforceable under U.S. law. Organizations participating in the DPF must annually re-certify. A U.S. organization’s failure to re-certify, voluntarily withdrawal or determination by the ITA failure to comply with DPF requirements will result in removal from the DPF and must immediately cease claim of DPF participation. Nevertheless, upon removal from the DPF, U.S. organization’s compliance with all DPF principles must continue for all personal information received while participating in the DPF for as long as it retains such information.
European General Court’s DPF Legal Reasoning
Latombe’s primary argument and the cornerstone of the case was the structural dependence of the Data Protection Review Court (DPRC). The General Court reviewed the structure and function of the DPRC in detail, noting the appointment process for DPRC judges has multiple steps and layers, term limitations, and dismissal only for cause. Citing those findings, the General Court determined the judges were insulated from improper influence.
The General Court further discussed the statutory obligations on both the Attorney General and intelligence agencies, explicitly prohibiting their interference with the DPRC’s work. Separately, the European Commission is required to continue to monitor the application of the DPF, and if necessary, suspect, amend or repeal the adequacy decision should changes in U.S. law or practice lessen the safeguards. These factors led the court to find that the DPRC met the EU standard of independent and impartial redress.
- Bulk Collection and Proportionality
The General Court reiterated that Schrems II did not demand ex ante judicial authorization, instead, it requires any bulk collection be subject to the meaningful, ex post judicial oversight. Separately, the General Court found that under U.S. law, collection of personal data by U.S. intelligence agencies is restricted to what is “necessary and proportionate” for clearly defined national-security purposes.
Further, such activities as bulk collection is subject to review DPRC, which has the authority to order remedial measures in cases where violations are identified. With this continued oversight, the General Court determined that the safeguards in the U.S. satisfy the “essential equivalence” test established by the Court of Justice of the European Union (CJEU).
Future of the DPF and Potential Additional Challenges
While this decision creates immediate stability for the DPF and participating U.S. organizations, the stability is not final.
Latombe has not indicated whether to expect an appeal, but he has until November 3, 2025 to decide whether to appeal the General Court decision to the CJEU. Separately, Max Schrems and NOYB issued a statement immediately upon the Latombe decision. NOYB argues that “the lower court here massively departs from the case law of the CJEU…It may be that the General Court did not have sufficient evidence before it – or it wants to make a point to depart from the CJEU. We will have to analyse the ruling in more detail the next days.” NOYB is monitoring the Trump Administration Executive Orders, removal of ‘independent’ heads of organizations, indicating that the Latombe challenge as too narrow and a more expansive challenge may come. Therefore, it is unclear whether further judicial challenges will be raised, leaving the long term stability of the DPF in question.
Separately, beyond a Latombe appeal or an NOYB challenge, the European Commission is required to continuously monitor the U.S. for any significant changes, whether legislative or U.S. agency changes. Any changes that could be found to significantly vary from the current framework, could result in a partial or complete suspension of the adequacy decision.
Conclusion
While the Latombe decision provides clarity and current certainty for U.S. organizations that require EU-U.S. data transfers, it is crucial that U.S. companies continue to monitor the annual European Commission reports, possible Latombe appeal and other legal challenges that may be brough before the General Court of the CJEU. The landscape of data transfers, domestically and internationally continues to be dynamic, requiring ongoing monitoring and U.S. companies should remain cautious and vigilant to every occurring changes. Additionally, while the Latombe judgement was a win for the DPF, it does not eliminate the need for transfer impact assessments when using alternative transfer mechanisms, such as Standard Contractual Clauses, especially for U.S. data recipients who have not self-certified under the DPF.
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