Articles, Alerts & Perspectives Archive

DEP will consider requests to temporarily suspend environmental requirements due to COVID-19

The PIOGA Press

This announcement reflects a thought change from DEP’s previous assertion that COVID-19’s impact on businesses in Pennsylvania would not excuse compliance with environmental laws, stating that “[a]ll permittees and operators are expected to meet all terms andconditions of their environmental permits, including conditions applicable to cessation of operations.”

What is required to request a temporary suspension?

Unlike EPA’s temporary policy, which does not require regulated entities to submit documentation regarding an inability to meet routine compliance obligations, DEP is requiring submittal of the request form. While DEP did not elaborate on how it will review requests for suspension, it will generally evaluate (1) the reasons for the request in light of the COVID-19 pandemic, and (2) the risk of harm to the environment or public health if the request is or is not granted.

Importantly, it will not be enough for entities to show that COVID-19 has restricted their ability to comply with regulatory, permit or other legal requirements; entities must demonstrate that strict compliance would prevent, hinder or delay necessary action in coping with the COVID-19 emergency. This standard reflects the language of Governor Tom Wolf’s March 6 Proclamation of Disaster Emergency and 35 Pa. C.S. § 7301, which DEP cited as authority for granting temporary suspensions.

The two-page request form asks 16 questions regarding topics including the following:

Alternate compliance options that have been explored;
Length of time the entity expects to be unable to comply and the necessary circumstances to return to compliance;
Extent of risk of additional pollution and/or how such increased pollution will be avoided;
Public health and safety benefits from granting the suspension; and
Negative consequences to the entity’s operations and the Commonwealth’s response to the COVID-19 emergency if the suspension is not granted. Some of the more interesting, and potentially controversial, questions asked by DEP include the following:
Do you believe cost gouging or supply hoarding is negatively affecting your ability to comply?
Would you possess a unique advantage over your competitors, or others in the same industry, if a suspension is granted?

It is not clear whether DEP will be receptive to entities requesting suspensions from settlement agreement requirements using the request form, or whether the department will expect entities to rely primarily on the force majeure provisions typically provided in those agreements. However, the request form does allow entities to request suspension of regulatory, permit “or other requirement(s),” indicating that entities may be able to request suspension of settlement agreement requirements using this recentlyintroduced process.

When are suspensions expected to be granted?

DEP has not announced its expected time frame for responding to the likely large number of requests for suspension. The department also did not explain how it will evaluate and balance the factors outlined in the request form. April 2020 | The PIOGA Press 7 However, in multiple places the form emphasizes that the entity should provide detailed and specific responses. DEP stated that suspensions will initially not be granted beyond June 30, 2020.

We note that this procedure applies only to requests for suspension of state regulatory or permit requirements and requirements under federal programs delegated to Pennsylvania. Entities seeking relief from federal requirements, under only federal authority, are to contact EPA Region III and consult EPA’s March 26 policy.

Additional guidance on conducting Chapter 102 earth disturbance activities

At the same time as providing the temporary suspension request form, DEP also issued COVID-19-related guidance for permittees and operators conducting permitted earth disturbance activities under Chapter 102 of the Pennsylvania regulations.

Entities considered “life-sustaining businesses” under Governor Wolf’s March 19 order, which required all “non-life-sustaining businesses” to close their physical locations, may continue to conduct earth disturbance activities to the extent such activities are in support of the operation of the life-sustaining business.

However, “non-life-sustaining businesses” must cease earth disturbance activities. Upon doing so, the entity must implement temporary or permanent stabilization measures as required by the permit and applicable regulatory requirements. Once required stabilization measures are implemented, the entity is relieved from requirements to perform weekly routine inspections, but still must conduct other inspections required by the permit, such as Post-Storm Event and Corrective Action inspections. DEP stated that it considers such inspections to be critical operational functions and not in violation of the March 19 order.

Babst Calland’s environmental attorneys are available to help you develop requests for temporary suspensions and guide you through the process. For more information, please contact Lisa M. Bruderly at 412-394-6495 or lbruderly@babstcalland.com or Daniel P. Hido at 412-394-6580 or dhido@babstcalland.com.

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Update: U.S. DOT Agencies and TSA Extend COVID-19 HazMat Relief

Transportation Safety Alert

(by Boyd Stephenson, Varun Shekhar, Jame Curry)

Babst Calland has updated this alert to capture new HazMat background check relief extended by the Transportation Security Administration (TSA).

In response to the COVID-19 pandemic, U.S. Department of Transportation (DOT) agencies that regulate the surface transportation of hazardous materials (HazMat) have extended several forms of relief. The Pipeline and Hazardous Materials Safety Administration (PHMSA) has waived some HazMat training requirements and delayed some equipment recertifications. The Federal Motor Carrier Safety Administration (FMCSA) and the Federal Railroad Administration (FRA) are implementing PHMSA’s waiver in their modes. FMCSA has also allowed states to extend the effective dates for commercial driver’s licenses (CDL) and commercial learner’s permits (CLP). Additionally, FRA has activated its emergency docket. FRA has not extended any hazardous materials-specific relief. Finally, the Transportation Security Administration (TSA) is allowing states to extend HazMat endorsements (HME).

Hazardous Materials Shippers, Carriers, and Package Manufacturers

On March 25th, PHMSA issued an updated policy declining to enforce recurrent training requirements under 49 C.F.R. § 172.704(c)(2) against HazMat employers unable to train employees due to COVID-19. Employers are still required to provide initial training to a new hazardous materials employee before the employee may perform regulated functions.
On April 1st, PHMSA issued two surface transportation-related emergency special permits authorizing the filling and transportation of certain DOT specification cylinders up to 12 months after they are due for a periodic requalification during the COVID-19 emergency. PHMSA also authorized the transportation of certain cylinders overdue for retesting due to COVID-19 disruptions.

Truck Transportation

On March 18th, FMCSA issued an expanded emergency declaration waiving certain provisions of Parts 390 through 399—most notably the hours of service requirements—for drivers providing direct assistance in support of relief efforts. Direct assistance includes transporting medical supplies, food, paper, and grocery products; precursors for those products; fuel; and equipment for constructing facilities to treat or house COVID-affected individuals. Direct assistance does not include routine commercial deliveries, including mixed loads with a nominal quantity of emergency relief items. The waiver doesn’t provide relief from the Hazardous Materials Regulations.
On April 2nd, PHMSA provided relief to shippers of alcohol-based sanitizer by issuing a temporary enforcement policy for the highway mode. The temporary policy provides liberalized minimum requirements for transporting sanitizer products composed of up to 80 percent alcohol in packages up to 119 gallons. The policy adopts sliding requirements that increase with the size of the package. Sanitizer product shipments normally exempt from the HMRs will remain exempt.
On March 24th, FMCSA issued a wavier that permitted States to extend the validity of CDLs and CLPs expiring on or after March 1st. FMCSA’s waiver confirms that federal highway funds will not be withheld if states decide to extend licenses. The FMCSA wavier does not require states to extend CDL and CLPs, so each state may adopt its own policies. This could create a potentially confusing patchwork of different state license extensions that could affect interstate transportation.
- So far, states haven’t extended CDLs and CLPs uniformly and some states have extended CDLs beyond the June 30, 2020.
- A HazMat endorsement (HME) is an extra certification issued with a CDL or CLP that allows the driver to transport placarded loads of HazMat. The Federal Motor Carrier Safety Laws require an HME applicant to pass a Transportation Security Administration (TSA) background check. These background checks must be renewed every five years. TSA has not extended the validity of background checks required to obtain or renew an HME, so it appears that the FMCSA waiver may not extend to expiring HMEs.
- Update: On April 3, 2020, TSA issued a notice allowing states to extend the validity of a HazMat endorsement (HME) issued on or after March 1st up to 180 days. An HME is an extra certification issued with a CDL or CLP that allows the driver to transport placarded loads of HazMat. The Federal Motor Carrier Safety Laws require an HME applicant to pass a TSA background check. These background checks must be renewed every 5 years. Like the CDL and CLP extensions, this relief is permissive and states may not implement it uniformly.

Rail Transportation

On March 23rd, FRA activated the Emergency Relief Docket (FRA-2020-0002) retroactive to March 13th, and placed the emergency relief provisions in 49 C.F.R. § 211.45 into effect. This allows railroads to submit a petition for emergency waiver of safety rules that FRA determines are directly related to an emergency event. FRA may grant a petition for waiver without prior public notice and comment if petitioners show that the request is in the public interest, not inconsistent with railroad safety and necessary to address an emergency. The Association of American Railroads and the American Short Line Regional Railroad Association submitted a joint petition for relief from regulations, including a request to relax timeframes for track inspections and mechanical and pre-departure inspections, but none related to hazardous materials transportation. FRA granted the petition and it is effective until May 24, 2020.

For more information on the various forms of COVID-19 HazMat relief, contact Boyd A. Stephenson at bstephenson@babstcalland.com or 202.853.3452, Varun Shekhar at vshekhar@babstcalland.com or 202.975.1390, and James Curry at jcurry@babstcalland.com or 202.853.3455.

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Amidst Coronavirus Pandemic NHTSA Issues First Proposed Rule Modifying the Federal Motor Vehicle Safety Standards to Remove Barriers to Automated Vehicles

Transportation Safety Alert

(by Ashleigh Krick, Boyd Stephenson and Justine Kasznica)

Amidst the coronavirus pandemic, the National Highway Traffic Safety Administration (NHTSA or the Agency) is moving forward with Automated Driving Systems (ADS) rulemakings. On March 30, 2020, NHTSA issued the first of several anticipated regulatory actions proposing to amend the Federal Motor Vehicle Safety Standards (FMVSSs) to remove barriers to ADS-equipped vehicles, including those without traditional manual controls. As with prior guidance from NHTSA, the Agency seeks to prioritize safety while promoting technology innovation.

On March 30, 2020, NHTSA issued a Notice of Proposed Rulemaking (NPRM) proposing to amend several of the crashworthiness FMVSSs (200 Series) for vehicles equipped with ADS that do not have manual controls and vehicles that are designed to transport only property (Occupant-less Vehicles). NHTSA proposes several new or changed definitions, textual clarifications, and applicability changes to preserve the same level of occupant protection provided in current standards, while clarifying the application of the standards to ADS-equipped vehicles. Specifically, NHTSA addresses configurations where, due to the lack of manual controls, the “driver seat” should rather be considered a front “passenger seat.” NHTSA also proposes to modify the applicability of the 200 Series to Occupant-less Vehicles.

NHTSA issued this NPRM in response to comments received from the Agency’s January 18, 2018 Request for Comments that sought input on regulatory barriers in existing FMVSSs for ADS-equipped vehicles with non-traditional interior designs. Many commenters thought that most of the regulatory barriers in the 200 Series did not require extensive research as only minor textual changes—principally driver-related references—would be needed. Commenters agreed that the current crash protection provided to vehicle occupants should be maintained for ADS-equipped vehicles.

What is NHTSA proposing?

Definitions. NHTSA proposes new definitions for “driver air bag,” “driver dummy,” “driver’s designated seating position,” “passenger seating position,” “steering control system,” and “manually-operated driving controls,” and a revised definition for “outboard designated seating positions.” Notably, NHTSA did not propose to revise the regulatory definition of “driver” at this time, but instead made other definitional or textual changes to differentiate when the Agency is referring to a human driver or an ADS. NHTSA stated, however, that it may modify the definition of driver in a future rulemaking.
ADS-Equipped Vehicles with No “Driver Seat.” NHTSA proposes textual modifications to account for ADS-equipped vehicles with no “driver’s seat,” but instead multiple front “passenger seats.” Under the terms of the Agency’s proposal, if there are manually-operated driving controls placed in front of any seating position, that seating position is considered the “driver’s designated seating position.” Seats that do not meet the definition of “driver’s designated seating position” will be treated as passenger seats. For ADS-equipped vehicles with no “driver’s designated seating position,” NHTSA proposes to apply the existing crash test performance requirements for a vehicle’s right front passenger seat to the left front passenger seat. NHTSA also proposes several textual modifications throughout the 200 Series to adjust spatial references to the traditional driver or “driver’s designated seating position.”
Advanced Airbags Requirements. In ADS-equipped vehicles without manual controls, NHTSA proposes to apply the same tests for air bag suppression and deployment for out-of-position occupants currently applicable to the right front passenger seat to the left front passenger seat. NHTSA additionally seeks comment on whether the Agency should apply the child and adult advanced air bag requirements to both front seats in an ADS-equipped vehicle without manual controls. And, NHTSA asks for comment on whether the Agency should require that ADS-equipped vehicles be unable to move if a child is detected in the conventional “driver’s seat.” NHTSA also proposes to amend the advanced airbag suppression telltale activation requirements and references to the “passenger air bag system,” replacing them with requirements for unique telltales for each front passenger seat. NHTSA clarified that it is not addressing other telltales in this NPRM.
Vehicles with No Steering Wheel or Steering Column. Recognizing that current occupant protection requirements assume a steering wheel and steering column, NHTSA proposes to amend the 200 Series to account for ADS-equipped vehicles without such features.
“Occupant-less Vehicles.” NHTSA concluded that vehicles designed to exclusively carry property should not be required to meet FMVSSs designed to protect occupants. NHTSA noted that it is unclear how certain performance tests in the 200 Series would apply to Occupant-less Vehicles, which have no seats. As such, NHTSA exempts Occupant-less Vehicles from several of the crashworthiness standards. NHTSA notes that these vehicles may require different safety standards, but a discussion of such standards is outside the scope of this NPRM.
Parking Break and Transmission Positions. NHTSA explains in the NPRM that the crash tests in the 200 Series do not require manually operated driving controls to conduct the tests. However, some tests require the parking brakes to be applied or the vehicle transmission in a certain position. NHTSA explained that it would be the manufacturer’s responsibility to provide the necessary means for the Agency to achieve the correct brake or transmission status to complete the compliance tests. This suggests that NHTSA may increasingly look to manufacturers to develop appropriate testing methodologies and technical solutions in order to certify FMVSS compliance.

What does NHTSA not propose in this NPRM?

NHTSA does not propose any changes that would allow for ADS-equipped vehicles with unconventional designs and uses, such as vehicles with unconventional seating configurations (e.g., campfire or carriage-style seating), novel occupant seating positions (e.g., laying flat), and “dual-mode” vehicles: those designed to be operated by either human drivers or an ADS. NHTSA explained that the Agency must conduct more research before considering standards for ADS-equipped vehicles with unconventional seating arrangements or “dual-mode” vehicles.

What’s Next?

Comments are due on May 29, 2020. Given the coronavirus pandemic, state and local organizations have requested that the federal government pause comment periods on active rulemakings. While the White House has not yet responded, this comment deadline may be extended.

Stakeholders can expect further regulatory actions from NHTSA that propose amendments to the FMVSS. In the NPRM, the Agency stated that this was “one of a series of regulatory actions” that NHTSA would be taking to address regulatory barriers to ADS-equipped vehicles. NHTSA hinted throughout the NPRM that telltales and warnings may be the next topic the Agency addresses.

For more information on NHTSA’s amendments to the FMVSSs and other actions to remove regulatory barriers to ADS-equipped vehicles, contact Ashleigh H. Krick at akrick@babstcalland.com or 202.853.3466, Boyd A. Stephenson at bstephenson@babstcalland.com or 202.853.3452, or Justine M. Kasznica at jkasznica@babstcalland.com or 412.394.6466.

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Update: Paycheck Protection Program FAQs (as of Tuesday, April 7, 2020)

Client Alert

(by Moore Capito, Christian Farmakis and Andrew Terranova)

Yesterday, the Small Business Administration (the SBA) published “Frequently Asked Questions” (the FAQ) guidance regarding the Paycheck Protection Program (PPP Loan), enacted as part of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Among other clarifications, below are some of the critical points that the SBA has clarified in the FAQ. The full FAQ can be found here. The SBA intends to update this document on a regular basis.

Monthly Payroll Verification by Lender

A lender is not to replicate an applicant’s calculation of “monthly payroll costs.” A lender’s minimal review of calculations based on a payroll report by a recognized third-party payroll processor, for example, would be reasonable. If the lender identifies errors in the borrower’s calculation, the lender should work with the borrower to remedy the error. See FAQ #1.

Some Companies with More than 500 Employees can Apply for PPP Loan

Companies with more than 500 employees can qualify for the PPP loan if the company satisfies the existing statutory and regulatory definition of a “small business concern” under section 3 of the Small Business Act. A company can qualify if it meets the employee-based or revenue-based size standard corresponding to its primary industry. Visit www.sba.gov/size for the industry size standards.

Additionally, a business can qualify for a PPP loan as a small business concern if it meets both tests in the SBA’s “alternative size standard” as of March 27, 2020. This test is satisfied if: (1) maximum tangible net worth of the business is not more than $15 million; and (2) the average net income after Federal income taxes (excluding any carry-over losses) of the business for the two full fiscal years before the date of the application is not more than $5 million. See FAQ #2.

Minority Shareholder’s Control Rights May be Irrevocably Waived to Eliminate Affiliate Designation

If a minority shareholder in a business irrevocably waives or relinquishes any existing rights specified in 13 C.F.R. 121.301(f)(1), the minority shareholder would no longer be an affiliate of the business (assuming there is no other relationship that triggers the affiliation rules). See FAQ #6.

Employee Compensation over $100,000 Annually

The exclusion of compensation in excess of $100,000 annually applies only to cash compensation, and not to non-cash benefits. See FAQ #7.

Use of a Payroll Provider

Payroll documentation by a payroll provider that indicates the amount of wages and payroll taxes reported to the IRS by the payroll provider for the borrower’s employees will be considered acceptable PPP loan payroll documentation. See FAQ #10.

Time Period to Determine Number of Employees and Payroll Costs for Loan Amount Calculation

Generally, borrowers can calculate their aggregate payroll costs using data either from the previous 12 months or from calendar year 2019. Borrowers may use their average employment over the same time periods to determine their number of employees, for the purposes of applying an employee-based size standard. Alternatively, borrowers may elect to use SBA’s usual calculation: the average number of employees per pay period in the 12 completed calendar months prior to the date of the loan application (or the average number of employees for each of the pay periods that the business has been operational, if it has not been operational for 12 months). See FAQ #14.

Accounting for Federal Taxes when Determining Maximum Loan Amount, Allowable Uses of a PPP Loan, and Forgivable Loan Amount

Under the CARES Act, payroll costs are calculated on a gross basis without regard to (i.e., not including subtractions or additions based on) federal taxes imposed or withheld, such as the employee’s and employer’s share of Federal Insurance Contributions Act (FICA) and income taxes required to be withheld from employees. As a result, payroll costs are not reduced by taxes imposed on an employee and required to be withheld by the employer, but payroll costs do not include the employer’s share of payroll tax. For example, an employee who earned $4,000 per month in gross wages, from which $500 in federal taxes was withheld, would count as $4,000 in payroll costs. The employee would receive $3,500, and $500 would be paid to the federal government. However, the employer-side federal payroll taxes imposed on the $4,000 in wages are excluded from payroll costs under the statute. See FAQ #16.

Authorized Signatory on Behalf of the Borrower

A single individual who is authorized to sign on behalf of the borrower may sign the application. However, such individual is to be an authorized representative of the applicant, as indicated on the application form. The individual’s signature is a representation to the lender and to the U.S. Government that the signer is authorized to make the certifications, including with respect to the applicant and each owner of 20% or more of the applicant’s equity, contained in the application form. See FAQ #11

Updating Applications that have Already been Processed

Borrowers that have already submitted applications based on the PPP Interim Final Rule published on April 2, 2020 do not need to update their applications if they have been processed by a lender. Borrowers whose submitted applications have not yet been processed may revise their applications based on clarifications reflected in the FAQ. See FAQ #17.

For more information on the above program or for assistance in applying for the program, please contact Babst Calland Attorneys Moore Capito at 304.552.8986 or mcapito@babstcalland.com, Christian Farmakis at 412.394.5642 or cfarmakis@babstcalland.comor Andrew Terranova at 412.773.8717 or aterranova@babstcalland.com.

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U.S. DOT Agencies Extend COVID-19 HazMat Relief

Transportation Safety Alert

(by Boyd Stephenson, Varun Shekhar, Jame Curry)

Hazardous Materials Shippers, Carriers, and Package Manufacturers

On March 25th, PHMSA issued an updated policy declining to enforce recurrent training requirements under 49 C.F.R. § 172.704(c)(2) against HazMat employers unable to train employees due to COVID-19. Employers are still required to provide initial training to a new hazardous materials employee before the employee may perform regulated functions.
On April 1st, PHMSA issued two surface transportation-related emergency special permits authorizing the filling and transportation of certain DOT specification cylinders up to 12 months after they are due for a periodic requalification during the COVID-19 emergency. PHMSA also authorized the transportation of certain cylinders overdue for retesting due to COVID-19 disruptions.

Truck Transportation

On March 18th, FMCSA issued an expanded emergency declaration waiving certain provisions of Parts 390 through 399—most notably the hours of service requirements—for drivers providing direct assistance in support of relief efforts. Direct assistance includes transporting medical supplies, food, paper, and grocery products; precursors for those products; fuel; and equipment for constructing facilities to treat or house COVID-affected individuals. Direct assistance does not include routine commercial deliveries, including mixed loads with a nominal quantity of emergency relief items. The waiver doesn’t provide relief from the Hazardous Materials Regulations.
On April 2nd, PHMSA provided relief to shippers of alcohol-based sanitizer by issuing a temporary enforcement policy for the highway mode. The temporary policy provides liberalized minimum requirements for transporting sanitizer products composed of up to 80 percent alcohol in packages up to 119 gallons. The policy adopts slidingrequirements that increase with the size of the package. Sanitizer product shipments normally exempt from the HMRs will remain exempt.
On March 24th, FMCSA issued a wavier that permitted States to extend the validity of CDLs and CLPs expiring on or after March 1st. FMCSA’s waiver confirms that federal highway funds will not be withheld if states decide to extend licenses. The FMCSA wavier does not require states to extend CDL and CLPs, so each state may adopt its own policies. This could create a potentially confusing patchwork of different state license extensions that could affect interstate transportation.
- So far, states haven’t extended CDLs and CLPs uniformly and some states have extended CDLs beyond the June 30th, 2020.
- A HazMat endorsement (HME) is an extra certification issued with a CDL or CLP that allows the driver to transport placarded loads of HazMat. The Federal Motor Carrier Safety Laws require an HME applicant to pass a Transportation Security Administration (TSA) background check. These background checks must be renewed every five years. TSA has not extended the validity of background checks required to obtain or renew an HME, so it appears that the FMCSA waiver may not extend to expiring HMEs.
- TSA-contractor HME background check enrollment centers remain open in the 42 states that use the TSA program. Florida, Kentucky, Maryland, New York, Pennsylvania, Texas, Virginia, and Wisconsin do not utilize the TSA-contractor and have so far not provided background check guidance. It is unclear whether drivers in these states will be able extend expiring HMEs.

Rail Transportation

On March 23rd, FRA activated the Emergency Relief Docket (FRA-2020-0002) retroactive to March 13th, and placed the emergency relief provisions in 49 C.F.R. § 211.45 into effect. This allows railroads to submit a petition for emergency waiver of safety rules that FRA determines are directly related to an emergency event. FRA may grant a petition for waiver without prior public notice and comment if petitioners show that the request is in the public interest, not inconsistent with railroad safety and necessary to address an emergency. The Association of American Railroads and the American Short Line Regional Railroad Association submitted a joint petition for relief from regulations, including a request to relax timeframes for track inspections and mechanical and pre-departure inspections, but none related to hazardous materials transportation. FRA granted the petition and it is effective until May 24, 2020.

For more information on the various forms of COVID-19 HazMat relief extended by DOT agencies, contact Boyd A. Stephenson at bstephenson@babstcalland.com or 202.853.3452, Varun Shekhar at vshekhar@babstcalland.com or 202.975.1390, and James Curry at jcurry@babstcalland.com or 202.853.3455.

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PADEP Will Consider Requests to Temporarily Suspend Environmental Requirements Due to COVID-19

Environmental Alert

(by Lisa Bruderly and Daniel Hido)

As businesses in Pennsylvania struggle to deal with significant disruptions and challenges to their operations caused by the COVID-19 pandemic, environmental agencies have recognized the challenges that the pandemic presents to achieving compliance with environmental obligations. For example, on March 26, 2020, the U.S. Environmental Protection Agency (USEPA) issued a temporary policy for excusing COVID-19-related noncompliance (see Babst Calland’s March 30, 2020 Environmental Alert for further details). Similarly, on March 31, 2020, the Pennsylvania Department of Environmental Protection (PADEP) issued an Alert announcing that it would consider requests to temporarily suspend certain regulatory, permit, and/or other legal requirements due to COVID-19. It also provided the form needed to make such a request. This announcement reflects a thought change from PADEP’s previous assertion that COVID-19’s impact on businesses in Pennsylvania would not excuse compliance with environmental laws, stating that “[a]ll permittees and operators are expected to meet all terms and conditions of their environmental permits, including conditions applicable to cessation of operations.”

What is Required to Request a Temporary Suspension?

Unlike USEPA’s temporary policy, which does not require regulated entities to submit documentation regarding an inability to meet routine compliance obligations, PADEP is requiring submittal of the request form. While PADEP did not elaborate on how it will review requests for suspension, it will generally evaluate (1) the reasons for the request in light of the COVID-19 pandemic, and (2) the risk of harm to the environment or public health if the request is or is not granted.

Importantly, it will not be enough for entities to show that COVID-19 has restricted their ability to comply with regulatory, permit, or other legal requirements; entities must demonstrate that strict compliance would prevent, hinder, or delay necessary action in coping with the COVID-19 emergency. This standard reflects the language of Governor Tom Wolf’s March 6, 2020 Proclamation of Disaster Emergency and 35 Pa. C.S. § 7301, which PADEP cited as authority for granting temporary suspensions.

The two-page request form asks 16 questions regarding topics including the following:

Alternate compliance options that have been explored;
Length of time the entity expects to be unable to comply and the necessary circumstances to return to compliance;
Extent of risk of additional pollution and/or how such increased pollution will be avoided;
Public health and safety benefits from granting the suspension; and
Negative consequences to the entity’s operations and the Commonwealth’s response to the COVID-19 emergency if the suspension is not granted.
Some of the more interesting, and potentially controversial, questions asked by PADEP include the following:
Do you believe cost gouging or supply hoarding is negatively affecting your ability to comply?
Would you possess a unique advantage over your competitors, or others in the same industry, if a suspension is granted?

It is not clear whether PADEP will be receptive to entities requesting suspensions from settlement agreement requirements using the request form, or whether PADEP will expect entities to rely primarily on the force majeure provisions typically provided in those agreements. However, the request form does allow entities to request suspension of regulatory, permit, “or other requirement(s),” indicating that entities may be able to request suspension of settlement agreement requirements using this recently-introduced process.

When are suspensions expected to be granted?

PADEP has not announced its expected time frame for responding to the likely large number of requests for suspension. PADEP also did not explain how it will evaluate and balance the factors outlined in the request form. However, in multiple places the form emphasizes that the entity should provide detailed and specific responses. PADEP stated that suspensions will initially not be granted beyond June 30, 2020.

We note that this procedure only applies to requests for suspension of state regulatory or permit requirements and requirements under federal programs delegated to Pennsylvania. Entities seeking relief from federal requirements, under only federal authority, are to contact EPA Region III and consult USEPA’s March 26, 2020 policy.

Additional Guidance on Conducting Chapter 102 Earth Disturbance Activities

At the same time as providing the temporary suspension request form, PADEP also issued Coronavirus-related guidance for permittees and operators conducting permitted earth disturbance activities under Chapter 102 of the Pennsylvania regulations. Entities that are considered “life-sustaining businesses” under Governor Wolf’s March 19, 2020 Order, which required all “non-life-sustaining businesses” to close their physical locations, may continue to conduct earth disturbance activities to the extent such activities are in support of the operation of the life-sustaining business. However, “non-life-sustaining businesses” must cease earth disturbance activities. Upon doing so, the entity must implement temporary or permanent stabilization measures as required by the permit and applicable regulatory requirements. Once required stabilization measures are implemented, the entity is relieved from requirements to perform weekly routine inspections, but still must conduct other inspections required by the permit, such as Post-Storm Event and Corrective Action inspections. PADEP stated that it considers such inspections to be critical operational functions and not in violation of the March 19th Order.

Babst Calland’s environmental attorneys are available to help you develop requests for temporary suspensions and guide you through the process. For more information, please contact Lisa M. Bruderly at 412.394.6495 or lbruderly@babstcalland.com or Daniel P. Hido at 412.394.6580 or dhido@babstcalland.com.

Click here for PDF.

Update: Interim Final Rule Issued for Paycheck Protection Program

Client Alert

(by Moore Capito, Christian Farmakis and Andrew Terranova)

On April 2, 2020, the Small Business Administration (the SBA) published an Interim Final Rule regarding the Paycheck Protection Program (PPP Loan), enacted as part of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Below are critical points that the SBA has clarified in the published guidance. The Interim Final Rule can be found here.

What is the interest rate of the loan?

The SBA has advised that the interest rate of the loan has been increased from a 0.5 percent fixed rate to a 1 percent fixed rate.

Do independent contractors count as employees for purposes of PPP Loan calculations or PPP Loan forgiveness?

No. Independent contractors have the ability to apply for their own PPP Loans, so they do not count for purposes of a borrower’s PPP Loan calculations or forgiveness.

How can PPP Loan proceeds be used?

The proceeds of a PPP loan are to be used for:

payroll costs (as defined in the Act and in 2.f.);
costs related to the continuation of group health care benefits during periods of paid sick, medical, or family leave, and insurance premiums;
mortgage interest payments (but not mortgage prepayments or principal payments);
rent payments;
utility payments;
interest payments on any other debt obligations that were incurred before February 15, 2020; and/or
refinancing an SBA EIDL loan made between January 31, 2020 and April 3, 2020.

If you received an SBA EIDL loan from January 31, 2020 through April 3, 2020, you can apply for a PPP Loan. If your EIDL loan was not used for payroll costs, it does not affect your eligibility for a PPP Loan. If your EIDL loan was used for payroll costs, your PPP Loan must be used to refinance your EIDL loan. Proceeds from any advance up to $10,000 on the EIDL loan will be deducted from the loan forgiveness amount on the PPP Loan. However, at least 75 % of the PPP Loan proceeds shall be used for payroll costs. For purposes of determining the percentage of use of proceeds for payroll costs, the amount of any EIDL refinanced will be included. For purposes of loan forgiveness, however, the borrower will have to document the proceeds used for payroll costs in order to determine the amount of forgiveness.

How much of the loan is forgiven?

While the full principal amount of the loan and any accrued interest may be forgiven, not more than 25 percent of the loan forgiveness amount may be attributable to non-payroll costs. The SBA has determined that the non-payroll portion of the forgivable loan amount should be limited to effectuate the core purpose of the CARES Act and ensure finite program resources are devoted primarily to payroll.

Has the PPP Loan application been updated?

Yes. An applicant must submit SBA Form 2483 (Paycheck Protection Program Application Form), which can be accessed here.

What certifications need to be made on the PPP Loan application?

An authorized representative of the applicant must certify in good faith to all of the below:

The applicant was in operation on February 15, 2020 and had employees for whom it paid salaries and payroll taxes or paid independent contractors, as reported on a Form 1099-MISC.
Current economic uncertainty makes this loan request necessary to support the ongoing operations of the applicant.
The funds will be used to retain workers and maintain payroll or make mortgage interest payments, lease payments, and utility payments; I understand that if the funds are knowingly used for unauthorized purposes, the federal government may hold me legally liable such as for charges or fraud. As explained above, not more than 25 % of loan proceeds may be used for non-payroll costs.
Documentation verifying the number of full-time equivalent employees on payroll as well as the dollar amounts of payroll costs, covered mortgage interest payments, covered rent payments, and covered utilities for the eight-week period following this loan will be provided to the lender.
Loan forgiveness will be provided for the sum of documented payroll costs, covered mortgage interest payments, covered rent payments, and covered utilities. As explained above, not more than 25 % of the forgiven amount may be for non-payroll costs.
During the period beginning on February 15, 2020 and ending on December 31, 2020, the applicant has not and will not receive another loan under this program.
I further certify that the information provided in this application and the information provided in all supporting documents and forms is true and accurate in all material respects. I understand that knowingly making a false statement to obtain a guaranteed loan from SBA is punishable under the law, including under 18 USC 1001 and 3571 by imprisonment of not more than five years and/or a fine of up to $250,000; under 15 USC 645 by imprisonment of not more than two years and/or a fine of not more than $5,000; and, if submitted to a federally insured institution, under 18 USC 1014 by imprisonment of not more than 30 years and/or a fine of not more than $1,000,000.
I acknowledge that the lender will confirm the eligible loan amount using tax documents I have submitted. I affirm that these tax documents are identical to those submitted to the Internal Revenue Service. I also understand, acknowledge, and agree that the Lender can share the tax information with SBA’s authorized representatives, including authorized representatives of the SBA Office of Inspector General, for the purpose of compliance with SBA Loan Program Requirements and all SBA reviews.

PPP Loans are being offered on a first-come, first-served basis.

Applications for small businesses and sole proprietorships are being accepted beginning April 3, 2020, and independent contractors and self-employed individuals can begin submitting applications on Friday, April 10, 2020.

For more information on the PPP Loan or for assistance in applying for the program, please contact Babst Calland Attorneys Moore Capito at 304.552.8986 or mcapito@babstcalland.com, Christian Farmakis at 412.394.5642 or cfarmakis@babstcalland.com or Andrew Terranova at 412.773.8717 or aterranova@babstcalland.com.

Click here for PDF.

US Supreme Court Update: Cases to Watch for CERCLA Practitioners

The Legal Intelligencer

(by Alana Fortna)

While there are several interesting environmental cases currently before the U.S. Supreme Court, two cases are particularly relevant for any legal practitioner handling Superfund cases, whether they involve site remediation issues or litigation over the cleanup costs. The two cases to watch are Atlantic Richfield v. Christian, Case No. 17-1498, and County of Maui v. Hawaii Wildlife Fund, Case No. 18-0260. Respectively, these two cases deal with the important legal questions of preemption and how groundwater discharges can be regulated and enforced. Both issues could have a significant impact on the scope of remediation and potential litigation at Superfund sites. CERCLA practitioners should watch for the opinions in these two cases.

The Atlantic Richfield appeal came out of the Montana Supreme Court, and it asks the court whether the Comprehensive Environmental Response, Compensation and Recovery Act (CERCLA), 42 U.S.C. Section 9601 preempts state common law remedies. The case involves the Anaconda Smelter Site, a Superfund site covering 300 square miles of property impacted by historical smelter and ore processing operations. The U.S. Environmental Protection Agency (EPA) placed the site on the National Priorities List in 1983 and identified Atlantic Richfield Co. as a potentially responsible party (PRP). After years of remedial investigation under EPA oversight, the EPA approved a remedial action plan for the cleanup of the site. The respondents in the appeal are a group of landowners who sued Atlantic Richfield alleging common law tort claims seeking more traditional damages, such as monetary damages and diminution of property value. However, the respondents also sought relief in the form of restoration, asking that Atlantic Richfield remediate or pay for remediation above and beyond the EPA-approved remedy. The respondents argued that Montana law supports their requested relief and requires Atlantic Richfield to restore the property to its pre-contamination state before the on-set of historical smelting operations. The critical question presented to the court is whether CERCLA preempts state common law claims for restoration that seek clean-up remedies that conflict with EPA-ordered remedies. The Montana Supreme Court held that landowners can pursue common law claims for restoration despite the conflict with EPA’s remedy.

Before the U.S. Supreme Court, Atlantic Richfield argued that the lawsuit and the restoration relief requested is barred by Section 113 of CERCLA, which deprives courts of the ability to hear challenges to the EPA’s remedial action plans. This is a critical component of CERCLA because it prevents parties from disrupting the remedial process and trying to impose a different remedy than what was approved by the agency with authority and experience. With respect to the preemption issue, Atlantic Richfield argued that in order to comply with the alleged state law duty to restore the property, it would have to defy the EPA order implementing the chosen remedial action. This creates a clear and stark conflict between state law and CERCLA. Numerous parties filed amicus curiae briefs in the appeal, including the Chamber of Commerce of the United States. The U.S. Supreme Court also invited the Solicitor General to file a brief expressing the views of the United States, and the Solicitor General also participated in oral argument before the court on Dec. 3, 2019.

The potential impacts of a decision affirming the Montana Supreme Court could be far-reaching. Such a decision could open the door to litigation by any displeased property owner in the vicinity of a Superfund site who believes that the EPA’s selected remedy is insufficient. Such litigation, if successful, would disrupt the regulatory framework of CERCLA, make remediations even more costly, and undercut the certainty and protections afforded to PRPs who work with EPA to clean up contaminated sites. Remedial investigations under CERCLA follow a certain process that evaluates the nature and extent of contamination and evaluates the feasibility of various alternatives for remedial action. CERCLA already includes public notice and comment requirements to allow the community to weigh in on the efforts at a given site. However, a ruling that affirms the Montana Supreme Court would allow private parties to try to dip their hands into the remediation process by filing a private action that was never contemplated by CERCLA or its regulatory framework.

The second case of interest is the County of Maui appeal out of the U.S. Court of Appeals for the Ninth Circuit, which involves how discharges to groundwater are regulated. While several federal cases have addressed the issue of the indirect discharge of pollutants into jurisdictional waters via groundwater transport, the U.S. Supreme Court granted certiorari in the County of Maui case. The case involves discharges to wastewater treatment plant wells that eventually reached the Pacific Ocean. The Ninth Circuit found Clean Water Act liability based on indirect discharges but limited coverage to instances where “the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water” and the pollutants that reach the surface water are more than “de minimis.” This is an important issue with far-reaching ramifications because it is generally understood that all groundwater that is not otherwise removed (i.e., pumped for drinking water supply) will eventually discharge to a surface water. The Clean Water Act prohibits discharges of pollutants from a “point source” without a NPDES permit.

The U.S. Supreme Court granted the petition from the Ninth Circuit case as to the following question: “Whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.” Numerous amicus curiae briefs were filed from a variety of parties, including former U.S. EPA officials and administrators, several states, and other interested organizations, which shows the importance of the question involved. The county argued that the Clean Water Act very deliberately controls pollution from “point sources” differently from “non-point sources.” Only discharges from “point sources” are regulated by the Clean Water Act and require a permit. The county argued that this position is unambiguously supported by the text, structure, context, history and purpose of the Clean Water Act. Oral argument occurred on Nov. 6, 2019, and an opinion is expected sometime this year.

How does a case about regulation under the Clean Water Act potentially affect liability at contaminated Superfund sites being remediated under CERCLA or the Resource Conservation and Recovery Act (RCRA)? Similar to the Atlantic Richfield case, a decision from the U.S. Supreme Court affirming the Ninth Circuit could threaten to disrupt the regulatory process for remediating sites. Such a decision could open up PRPs to unanticipated liability under the Clean Water Act, which includes a citizen suit provision. Both CERCLA and RCRA cleanups are based on an evaluation of risk. For example, under CERCLA, a PRP in conjunction with EPA evaluates remedial action alternatives, which may not include absolute source control. Acceptable alternatives may allow for some form of natural attenuation or institutional controls related to groundwater contamination. Moreover, CERCLA and RCRA include a mechanism for a determination that removal of certain contamination in groundwater is technically infeasible. If a PRP has not achieved complete source control, then it could arguably face additional liability under the Clean Water Act for contamination that is migrating from the source area into groundwater and ultimately to a navigable water. This is not what was intended by the Clean Water Act. Therefore, the groundwater conduit theory could potentially disrupt the regulatory framework and semblance of predictability at Superfund sites while opening PRPs up to additional, unintended litigation.

For the full article, click here.

COVID-19 Updates to Pennsylvania & West Virginia Unemployment Laws

Employment & Labor Alert

(by Stephen Antonelli, Mychal Schulz and Brian Lipkin)

At this uncertain time, many employers are considering whether to lay off or furlough employees – particularly employees who are unable to work remotely. Earlier this week, we provided guidance on an alternative to layoffs and furloughs, as some employers are exploring grants and loans that are available under the new federal and state stimulus programs. With this Alert, we are providing an update on recent changes to Pennsylvania and West Virginia unemployment laws:

Increased Benefit Amounts Normally, unemployment benefits are capped at $573 per week in Pennsylvania and $424 per week in West Virginia. Under the Paycheck Protection Program provision of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), the federal government will supplement state unemployment benefits by $600 per week. Through July 31, 2020, unemployment benefits will be capped at $1,173 per week in Pennsylvania, and $1,024 per week in West Virginia. As a result, for the next four months, some workers may actually earn more in unemployment benefits than they would have earned in wages. For example, an employee who would otherwise receive $100 per week of state unemployment benefits will now receive an additional $600 per week from the federal government. After the federal supplement of $600 per week expires, the employee may continue to collect unemployment benefits at the usual rate in each state
Expanded Eligibility Until recently, Pennsylvania and West Virginia limited unemployment benefits to certain employees. In Pennsylvania, to receive unemployment benefits, an employee must have earned at least $116 per week, during at least 18 weeks in the past year. In West Virginia, employees must satisfy two requirements within the past year: they must have earned a total of at least $2,200; and they must have worked during at least two calendar quarters. Therefore, in both states, part-time employees who meet these minimum requirements can be eligible for unemployment benefits. Under the CARES Act, however, both states will expand eligibility for unemployment benefits to self-employed workers, freelancers, “gig” workers, and independent contractors. Notably, an employee may not receive benefits under both the Families First Coronavirus Response Act (FFRCA) and unemployment compensation laws.
COVID-19-Related Unemployment Both Pennsylvania and West Virginia have clarified that employees will collect unemployment benefits if their employer closes, lays them off, furloughs them, or reduces their hours below certain thresholds. In both states, employees may also collect unemployment benefits if they are unable to work remotely because they are self-isolating due to COVID-19. Both states also have expanded unemployment benefits to cover situations where an employee needs to care for a child, elderly parent, or other household member because a school, daycare center, or adult care facility has closed.
Unemployment Due to Generalized Fear of COVID-19 Pennsylvania employees are ineligible for unemployment benefits if they choose not to work due to a generalized fear of contracting the COVID-19 virus. According to Scott A. Adkins, the Acting Commissioner of WorkForce West Virginia, an individual may not obtain unemployment benefits in West Virginia based solely on a “fear” of the coronavirus or COVID-19, and any approved application that is later determined not to qualify for benefits may be subject to an overpayment demand.
Longer Duration Normally, workers in both Pennsylvania and West Virginia may collect unemployment benefits for up to 26 weeks. Under the CARES Act, the federal government will fund a 13-week extension of benefits at the usual rate in each state, so that workers in Pennsylvania and West Virginia may now collect up to 39 weeks of benefits.
Suspension of Waiting Period Normally, Pennsylvania and West Virginia require unemployed workers to wait one week before collecting benefits. Both states have temporarily suspended this waiting period, so that eligible applicants in Pennsylvania and West Virginia may collect benefits immediately.
Suspension of Work Search Requirements Normally, Pennsylvania and West Virginia require unemployed workers to certify that they are actively seeking work. Both states have temporarily suspended this requirement, so that unemployed workers no longer need to certify that they are actively seeking work.
Impact on Employer’s Experience Rating Normally, Pennsylvania and West Virginia track each employer’s “experience rating,” which takes into account the frequency and amount of past unemployment claims involving their employees. An employer with a higher experience rating contributes more toward unemployment benefits than an employer with a lower experience rating. Pennsylvania is assuring employers that their tax rate “will not be increased because of COVID-19 related claims.” Similarly, West Virginia will freeze an employer’s experience rating at some point before March 1, 2020, so that COVID-19-related claims have no impact on the ratings, with the frozen rating likely continuing into next year.
Pennsylvania Notification Requirement In Pennsylvania, employers are now required to affirmatively notify employees, when their employment ends, that they may be eligible for unemployment benefits. Pennsylvania offers a model notice that includes all of the required information, although the notice has not yet been updated to reflect the new provisions of the unemployment law. On the other hand, West Virginia does not currently require employers to notify employees that they may be eligible for unemployment benefits.

The laws and guidance in this area are changing daily, so Babst Calland’s Employment and Labor Group will continue to alert clients of important developments. If you have any questions on how these updates will affect your business, please contact Stephen A. Antonelli at (412) 394-5668 or santonelli@babstcalland.com, Mychal S. Schulz at (681) 265-1363 or mschulz@babstcalland.com, or Brian D. Lipkin at (412) 394-5456 or blipkin@babstcalland.com.

End of the Trail: Supreme Court to Hear Atlantic Coast Pipeline Appeal

Institute for Energy Law Oil & Gas E-Report

(by Adam Speer)

On October 4, 2019, the Supreme Court of the United States granted certiorari to hear an appeal of the Fourth Circuit’s decision vacating the United States Forest Service’s special use permit authorizing the Atlantic Coast Pipeline (ACP) to cross beneath a segment of the Appalachian National Scenic Trail. In Cowpasture River Preservation Association v. Forest Service, 911 F. 3d 150 (4th Cir. 2018), a three-judge panel from the Fourth Circuit Court of Appeals ruled that the United States Forest Service lacked the statutory authority pursuant to the Mineral Leasing Act (MLA) to grant a pipeline right-of-way across the Appalachian Trail. The Fourth Circuit’s decision halted the construction of the ACP. If the decision stands, it could impede the completion of the ACP and affect other current and future pipeline projects along the east coast, like the Mountain Valley Pipeline, that would also cross the Trail.

For the full article, click here.

For the full report, click here.

UPDATE: Assessing Your Organization’s Stimulus Program Options

Client Alert

(by Moore Capito, Christian Farmakis and Andrew Terranova)

Earlier today the U.S. Treasury Department (the Department) published additional information on the Paycheck Protection Program (PPP Loan), enacted as part of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Below are critical points that the Department has clarified in the published guidance.

When can I apply?

Small businesses and sole proprietorships can begin submitting applications on Friday, April 3, 2020
Independent contractors and self-employed individuals can begin submitting applications on Friday, April 10, 2020.

How much money can be borrowed?

The Department clarified that salary, wages, commissions, or tips are capped at $100,000 on an annualized basis for each employee.

How much of the loan is forgiven?

Due to likely high subscription, the Department anticipates that not more than 25% of the forgiven amount may be for non-payroll costs.

What is the interest rate of the loan?

0.5% fixed rate.

Read the latest guidance information issued by the Department of Treasury below.

For a top-line overview of the program, click here.

If you’re a lender, more information can be found here.

If you’re a borrower, more information can be found here.

The application for borrowers can be found here.

For more information on the above program or for assistance in applying for the program, please contact Babst Calland Attorneys Moore Capito at 304.552.8986 or mcapito@babstcalland.com, Christian Farmakis at 412.394.5642 or cfarmakis@babstcalland.com or Andrew Terranova at 412.773.8717 or aterranova@babstcalland.com.

Click here for PDF.

EPA’s New Proposed Interpretation of “Begin Actual Construction” Under the New Source Review Preconstruction Permitting Regulations

Environmental Alert

(by Julie Domike and Michael Winek)

On March 25, 2020, EPA released a draft guidance memorandum proposing to change the agency’s interpretation of the term “begin actual construction” under the New Source Review (NSR) preconstruction permitting regulations. If finalized, this proposed guidance would expand the activities the factories, power plants, refineries and other industrial operations may undertake while waiting to receive an NSR permit.

Federal NSR permitting regulations provide that “[n]o new major stationary source or major modification . . . shall begin actual construction without a permit that states that the major stationary source or major modification will meet those requirements.” 40 CFR § 52.21(a)(2)(iii). The regulations define the term “begin actual construction” to mean “in general, initiation of physical on-site construction activities on an emissions unit which are of a permanent nature.” 40 CFR § 52.21(b)(11).

EPA currently interprets “begin actual construction” as almost any physical on-site construction activity that is of a permanent nature, even if the activity does not involve construction “on an emissions unit.” This interpretation precludes many preparatory activities such as installation of building supports and foundation, paving, laying of underground piping, construction of a permanent storage structure, and other similar activities.

Under the proposed revised interpretation, a source owner or operator, prior to obtaining an NSR permit, may undertake physical on-site activities – including activities that may be costly, that may significantly alter the site, and/or are permanent in nature – provided that those activities do not constitute physical construction on an emissions unit. Under this interpretation, an “installation necessary to accommodate” the emissions unit at issue is not considered part of the actual emissions unit; thus, construction of such an installation would be permissible in advance of obtaining an NSR permit. EPA believes that this interpretation is more consistent with the regulatory text and will be less restrictive on those seeking NSR permits.

EPA does caution, however, that any activities undertaken prior to obtaining an NSR permit are undertaken at the owner’s or operator’s own risk. Resources expended prior to obtaining a permit may be wasted if changes are necessary to obtain the permit or the permit is not granted. EPA further warns that some on-site activities that would be permissible under the revised federal NSR interpretation could be limited by other laws. Such law could include state permitting programs or the Endangered Species Act.

EPA is providing an opportunity for interested stakeholders to review and comment on the draft guidance. EPA will accept comments on the draft guidance through May 11, 2020.

For additional information and assistance with draft comments, please contact
Julie R. Domike at 202.853.3453 or jdomike@babstcalland.com or Michael H. Winek at 412.394.6538 or mwinek@babstcalland.com.

Click here for PDF.

Assessing Your Organization’s Stimulus Program Options

Client Alert

(by Moore Capito, Christian Farmakis and Andrew Terranova)

The COVID-19 pandemic is impacting every business sector in the United States. Federal government and the Commonwealth of Pennsylvania have announced various stimulus programs to assist businesses eligible to receive certain economic benefits. Babst Calland’s Corporate and Commercial attorneys have been following the existing and new stimulus programs currently being offered.

This is a time-sensitive opportunity to consider how these programs may apply to your business. Various programs are summarized below for your convenience. Together, we can help you navigate this crisis and prepare your organization to continue thriving in the months and years ahead. To schedule a private conversation to help you evaluate whether these programs are right for your company, contact Attorney Moore Capito at 304.552.8986 or mcapito@babstcalland.com.

ECONOMIC INJURY DISASTER LOAN

Description

An Economic Injury Disaster Loan (EIDL) is a long-term, low-interest loan that provides small businesses with working capital of up to $2 million directly from the U.S. Treasury. The intent of this federal program is to provide six months of working capital to qualified applicants.
In response to the impacts of the COVID-19 pandemic, the U.S. Small Business Administration (SBA) has lifted certain requirements to make it easier for small businesses to receive an EIDL.

Who is eligible to receive it?

Small businesses and sole proprietors in all 50 states, Washington, D.C., and U.S. territories may apply for an EIDL, so long as they do not exceed the size standard for the industry in which they operate. For a list of the size standards per industry, click here. Eligibility is also based on a series of factors set forth on the application.

What are the terms of the loan?

An EIDL has a maximum 30-year term, with a 3.75% interest rate for small businesses and 2.75% interest rate for non-profit businesses, with no fees or closing costs. Normally, an EIDL requires collateral for any loans over $25,000, but this requirement has been waived due to the COVID-19 pandemic.

A small business can expect to receive funds roughly 25 to 30 days after submitting the loan application.

What can the loan be used for?
The funds can be used to pay fixed debts, real estate payments, payroll, accounts payable, and other bills that cannot be paid because of the disaster’s impact, as well as be used to purchase equipment and machinery. The loan proceeds cannot be used to refinance long-term debt.

How to apply?

The application can be submitted online through the SBA’s website here. An applicant should expect to provide the following:

Business Loan Application (Form 5)
Tax Information Authorization (IRS Form 4506T)
Complete copies of most recent federal income tax returns
Personal Financial Statement (SBA Form 413)
Schedule of Liabilities listing all fixed debts (SBA Form 2202 may be used)

These forms will apply to the applicant, principals owning 20% or more of the business, general partners, and/or managing members. Applicants should be prepared to provide two to three years of tax returns, prior year financial statements, year-to-date financial statements, property leases, and working knowledge of business and personal credit scores.

PAYCHECK PROTECTION PROGRAM

Description

The Paycheck Protection Program (PPP Loan), enacted as part of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), is a $350 billion federal program designed to provide loan assistance to qualifying small businesses to retain workers, maintain payroll, and cover other qualifying expenses such as mortgage interest payments, group health benefits, rent payments, lease obligations, utility expenses, and interest on any other debt incurred before the Cover Period (as defined below). PPP Loans are 100% federally guaranteed loans and forgivable in certain instances. If forgiven, the loan is not taxable. PPP Loan proceeds can be used to pay payroll expenses, debt obligations, and other qualifying expenses during an eight-week period between February 15, 2020 to June 30, 2020 (Covered Period).

Who is eligible to receive it?

Any small business, 501(c)(3) nonprofit, 501(c)(19) veterans organization, or Tribal business concern described in section 31(b)(2)(C) of the Small Business Act that employs 500 employees or fewer, or the applicable size standard for the industry as provided by Small Business Act, if higher, is eligible to receive a PPP Loan.

Restaurants, hotels, and businesses that fall within the definition of “Accommodation and Food Services” according to the North American Industry Classification System (NAICS) code 72 are eligible if each physical location employs 500 or fewer employees.

Sole proprietors, independent contractors, gig economy workers, and other self-employed individuals are also eligible for a PPP Loan.

Note, a qualifying business may not take out an Economic Injury Disaster Loan (EIDL) and PPP Loan for the same purpose, however, an EIDL may be refinanced into a PPP Loan subject to certain terms and provisions.

How much money can be borrowed?

Generally, the maximum amount a qualified applicant may borrow under this program will be 2.5 times the average total monthly “Payroll Costs” for the one-year period before the PPP Loan is made. However, under no circumstances can any applicant borrow more than a maximum amount of $10 million. Note, separate calculations designed to address seasonal employers or employers that did not exist prior to June 30, 2019 are provided for in the act.

How to apply?

Applicants can apply directly to lending institutions that are already approved SBA lenders or that have been recently approved by the U.S. Department of Treasury. An applicant need not contact the SBA or any other governmental entity to apply. To locate an SBA-approved lender in your area, use the Lender Match online referral tool on SBA’s website (click here). There is no fee to apply for a PPL Loan.

Applicants may apply for a PPP Loan anytime during the Covered Period.

How much of the loan is forgiven?

The amount of principal that may be forgiven is determined by the expense and timeframe in which the expense occurred. Only expenses related to payroll costs, interest payments on mortgages, rent payments, lease payments, and utility agreements are eligible for forgiveness. While funds may be used to pay other expenses or obligations, those amounts will not be forgiven.

Payroll costs include salaries (up to an annual rate of pay of $100,000), hourly wages and tips, paid or medical leave, and health insurance premiums. For mortgage interest, rent, and utility expenses to be forgiven, the related agreements must have been effective before start of the Covered Period.

The amount of principal to be forgiven may be reduced if not all employees are retained at the same monthly average compensation as during the previous 12-month period. In other words, if a business keeps all its employees, the entirety of the loan will be forgiven. The amount forgiven will be proportionately reduced based on the percentage decrease in workforce. Additionally, if payroll costs (associated with workers making less than $100,000 annually) decreases more than 25%, the amount forgivable will be proportionately reduced by a number equal to the percentage decrease. Finally, decreases related to reduction in workforce and/or payroll costs will not affect the amount of forgiveness if the employees are reinstated and/or costs are restored by June 30, 2020.

The lender is required to render a decision on the amount of principal to be forgiven within 60 days of receiving an application for forgiveness. If the full principal of the loan is forgiven, there is no interest due to the lender for the eight-week period. If less than the entire amount is forgiven, the interest due to the lender is governed by the terms entered into by the borrower and the lender.

Click here to read the latest guidance information issued by the Department of Treasury.

COVID-19 WORKING CAPITAL ACCESS PROGRAM

Description

Pennsylvania Governor Tom Wolf announced that $60 million in funding has been made available to provide working capital loans to small businesses located in the Commonwealth of Pennsylvania through the COVID-19 Working Capital Access Program (CWCA). The intent of the CWCA is to provide working capital to eligible Pennsylvania businesses. The CWCA is administered by the Pennsylvania Industrial Development Authority (PIDA).

It is anticipated that these funds will be in high demand. Demand will most likely exceed the funding available. Eligible small businesses in need of assistance should begin compiling the necessary paperwork and documentation to obtain funding immediately.

Who is eligible to receive it?

Businesses located in Pennsylvania having 100 or fewer full-time employees worldwide at the time of application are eligible to apply for a CWCA loan.

What can the loan be used for?

The CWCA loan proceeds must be used for operational working capital needs. The loan proceeds cannot be used to pay expenses relating to fixed assets or to acquire production machinery and equipment. In addition, the loan proceeds cannot be used for loan repayments, dividend distributions, finance of a project located outside of the Commonwealth, or for future or projected costs.

What are the terms of the loan?

A CWCA loan has a three-year term. No payments are due during the first year. Principal and interest, if applicable, will be due monthly for years two and three, and a balloon payment will be due and payable at the end of the third year. Interest rates are 0%, except for agricultural producers, which loans will be subject to a fixed 2% rate during the life of the loan. No matching investment is required, except for retail/service enterprises, and there are no job retention or creation requirements. For retail/service enterprises, the CWCA program can finance 50% of eligible working capital costs up to $100,000.

How to apply?

Loan applications are submitted to the Certified Economic Development Organization (CEDO) that services the county where the business is located (see the full list of CEDOs here). Applicants are required to provide a Project Narrative, Company Profile Sheet, W-9 Form, Certification Sheet, Debt Schedule, Cash Flow Analysis Statement, Personal Financial Statement, and other additional information, including financial statements and a credit report. The CEDO will review the application and forward completed applications to PIDA. Applicants will be responsible for direct costs associated with the application process, such as costs associated with obtaining a credit report and submitting financial filings.

Eligible small businesses in need of assistance should begin compiling the necessary paperwork and documentation immediately to obtain funding given the limited resources available.

PENNSYLVANIA SHARED-WORK PROGRAM

Description

The Pennsylvania Shared-Work Program (Shared-Work Program) allows employers to temporarily reduce the work hours of a group of employees, and those in the “group” become part of a “shared-work plan.” When the reduction occurs, those employees in the shared-work plan are eligible to receive unemployment benefits associated with the hours that they lost due to the reduction. The goal of the Shared-Work Program is to keep employees on companies’ payrolls rather than laying them off completely. In short, employees receive “shared-work” unemployment compensation benefits during the reduction period, and employers retain their skilled workforce during a temporary slowdown.

Who comprises a shared-work group?

At least two participating employees in one affected unit or a department, shift or other organizational unit defined by the employer. Generally, all employees in the affected unit are required to participate in the shared-work plan, except for employees employed for less than three months or employees who work 40 hours or more a week.

How does it work?

Employees participating in a shared-work plan will have their work hours reduced by at least 20% but not more than 40%. This reduction percentage must be the same for all employees participating in the shared-work group. The employees receive a percentage of their maximum allowable unemployment compensation equal to the reduction percentage (i.e., if the employees’ hours are reduced by 25%, then they would receive 25% of their maximum permitted unemployment compensation).

The shared-work plan will automatically terminate upon the expiration date provided for in the plan, or an employer may terminate the plan prior to the expiration date by providing written notice to the Office of UC Benefits Policy.

What are the qualifications and restrictions?

An employer may participate in the Shared-Work Program if it has filed all unemployment compensation tax reports and paid all amounts due under Pennsylvania unemployment compensation law, has a positive reserve account balance (for contributory employers), and has paid wages for the last 12 consecutive quarters.

While enrolled in the Shared-Work Program, an employer agrees not to hire new employees in, or transfer employees to, the unit affected by the shared-work plan during the effective period. The employer also agrees to not lay off participating employees during the effective period or reduce a participating employee’s hours by more than the reduction percentage, except during holidays, designated vacation periods, equipment maintenance or similar circumstances. Any change in the reduction percentage needs to be approved by the Department of Labor and Industry (Department) as part of a modified plan. Fringe benefits need to continue to be available to participating employees not covered by a collective bargaining agreement.

How to apply?

Applicants must complete a Pennsylvania Unemployment Compensation Shared-Work Plan application, which can be started online here. The application should include the following:

The name of the applicant and the affected unit that will be subject to the shared-work plan;
The reduction percentage of shared-work employees’ hours;
The beginning date of the reduction in hours;
The end date of the reduction in hours;
Any period that the hours of work will be reduced by more than the reduction percentage due to holidays, vacations, equipment maintenance or similar circumstances;
All participating employees’ names, Social Security numbers, normal weekly hours and reduced hours; and
The union’s approval of the proposed plan, if participating employees are covered by a collective bargaining unit.

Applications will be reviewed within 15 days of receipt. The decision to approve a shared-work plan is within the Department’s discretion and is not appealable. If denied, employers are permitted to submit new applications.

For more information from the Office of Unemployment Compensation, click here.

For more information on any of the above programs or for assistance in applying for any the programs, please contact Babst Calland Attorneys Moore Capito at (304) 552-8986 or mcapito@babstcalland.com, Christian Farmakis at (412) 394-5642 or cfarmakis@babstcalland.com, or Andrew Terranova at (412) 773-8717 or aterranova@babstcalland.com.

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EPA Establishes Temporary Policy for Excusing COVID-19-Related Noncompliance

Environmental Alert

(by Lisa Bruderly, Ben Clapp and Gary Steinbauer)

In light of historic protective measures and travel bans to prevent community spread of COVID-19, the U.S. Environmental Protection Agency (EPA) issued an unprecedented temporary policy for exercising its enforcement discretion for environmental noncompliance caused by the COVID-19 pandemic. On March 26, 2020, the EPA published a memorandum entitled, COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program (“EPA’s COVID-19 Policy” or “Policy”). EPA’s COVID-19 Policy applies retroactively, beginning on March 13, 2020, and is in effect until EPA provides notice online within seven days of its termination. This Alert addresses five critical questions about EPA’s COVID-19 Policy.

When Does EPA’s COVID-19 Policy Apply?

EPA’s COVID-19 Policy applies when environmental compliance is not “reasonably practical,” despite making every effort to comply. Coverage under the Policy is not automatic. It requires regulated entities to take, at a minimum, the following proactive steps: (1) minimize the effect and duration of any noncompliance; (2) identify the nature and date(s) of noncompliance; (3) identify how COVID-19 caused the noncompliance and describe the response actions taken; (4) return to compliance as soon as possible; and (5) document each of these actions.

What Compliance Monitoring and Reporting Obligations Does the Policy Cover?

Generally, EPA does not expect to assess penalties for violations of a wide-range of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations if: (1) the regulated entity takes the steps outlined above and documents that COVID-19 was the cause of the noncompliance, and (2) EPA agrees with the entity’s determination.

EPA expects regulated parties to use existing statutory, regulatory, and permitting requirements for reporting COVID-19-related noncompliance, unless COVID-19 response actions themselves hinder reporting, in which case EPA expects facilities to document and maintain noncompliance-related information internally and make it available upon request. “Catching up” is not expected for missed monitoring and reporting, when the underlying obligation applies to intervals of less than three months. For monitoring and reporting obligations that apply on a semi-annual or annual basis, EPA expects facilities to monitor and report as soon as possible after the Policy is terminated and submit reports late, if necessary. EPA also encourages regulated parties to use electronic reporting, digital signatures, and e-mail to meet reporting obligations.

What Expectations Does EPA Have for Facility Operations?

EPA expects all regulated entities to operate their facilities in a manner that is safe and protective of human health and the environment. If non-compliance caused by COVID-19 could result in an acute risk or an imminent threat to human health or the environment, regulated entities are expected to notify the appropriate implementing authority (i.e., for authorized programs, the state or tribe) and are encouraged to notify the EPA as well. EPA will then coordinate with state and tribal authorities and work with the facility to minimize or prevent the acute risk or imminent threat from the COVID-19 caused noncompliance and obtain a return to compliance.

If a facility exceeds air emission or wastewater discharge limitations as a result of a failure of pollution control equipment (e.g. air emission controls, wastewater treatment systems) caused by COVID-19, the facility is expected to notify the implementing authority as quickly as possible. The notification should include information on the pollutants released as a result of the failure, a comparison between the expected non-compliant release or exceedances and applicable permit limits, and the expected timing and duration of the release or exceedances. EPA will evaluate the circumstances, including the COVID-19 pandemic, when determining whether an enforcement response is appropriate.

If COVID-19 disruptions prevent hazardous waste generators from transferring waste off-site as required by RCRA, EPA will continue to treat such entities as hazardous waste generators, rather than as treatment, storage and disposal facilities, if the entity properly stores and labels the waste and takes the steps outlined above. Similarly, Very Small Quantity Generators and Small Quantity Generators will retain their status, even if the quantity of stored hazardous waste exceeds the regulatory threshold, if they properly store and label the waste and take the steps outlined above.

For settlement agreement-related obligations and milestones, EPA expects parties to utilize the noncompliance notification provisions in the settlement agreements, including force majeure provisions. Under its administrative settlement agreements, EPA does not intend to seek stipulated penalties for compliance obligations that were missed due to COVID-19, if the steps outlined above are taken. The Policy recognizes that consent decrees with the U.S. Department of Justice (DOJ) and EPA are court orders, and courts retain jurisdiction. Nonetheless, EPA plans to work with DOJ to exercise discretion not to pursue stipulated penalties for COVID-19-related noncompliance.

How Will EPA Focus Its Resources During this Period?

EPA expects to focus its resources largely on situations that may create an acute risk or an imminent threat to human health or the environment. However, all ongoing enforcement matters will continue.

What are the Exceptions and How Does the Policy Affect State Environmental Obligations?

The Policy does not apply to activities carried out under Superfund or RCRA Corrective Actions. EPA policy with respect to those programs will be issued separately. The Policy also does not apply to violations that are the result of an intentional disregard for the law (i.e., criminal violations). EPA also makes clear that the Policy is not intended to relieve an entity from its obligation to prevent, respond to, or report accidental releases of pollutants.

Importantly, the Policy only addresses EPA’s enforcement discretion for federal environmental noncompliance caused by COVID-19 and does not address noncompliance situations when a state is the authorized authority. Several state environmental regulatory agencies have taken similar steps to provide relief during this unprecedented time and affected regulated entities should ensure that they understand the requirements of any applicable state or tribal COVID-19 related enforcement discretion policies. As an example, the Ohio Environmental Protection Agency (Ohio EPA) has established a website explaining how regulated parties can make COVID-19-related enforcement discretion requests for unavoidable noncompliance situations. Ohio EPA has created an email submission process to field enforcement discretion requests and pledges to timely respond.

Babst Calland’s environmental attorneys are available to help you develop and implement procedures for addressing Coronavirus-related environmental noncompliance under the Policy. For more information, please contact Lisa M. Bruderly at (412) 394-6495 or lbruderly@babstcalland.com, Ben Clapp at (202) 853-3488 or bclapp@babstcalland.com, or Gary E. Steinbauer at (412) 394-6590 or gsteinbauer@babstcalland.com.

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2 Recent Court Opinions Clarify Mechanics’ Lien Claim Practices, Procedures

The Legal Intelligencer

(by Marc Felezzola and Benjamin Wright)

Two recent opinions from Pennsylvania’s Superior Court clarify aspects of the practice and procedure surrounding mechanics’ lien claims in the commonwealth—one case addressed whether a subcontractor may serve its formal notice of intent to lien upon an owner via FedEx and the other addressed when, if ever, grounds for statutory preliminary objections to a mechanics’ lien claim will be deemed waived.

Superior Court permits service of subcontractor’s formal notice of intent to lien via FedEx.

In American Interior Construction & Blind v. Benjamin’s Desk, 206 A.3d 509 (Pa. Super. Ct. 2019), the Superior Court was asked to determine whether the procedural rules of the Mechanics’ Lien Law were to be interpreted strictly or whether substantial compliance would suffice.

In American Interior, Benjamin’s Desk had retained Brass Castle Building (Brass) as the general contractor for the construction of office space improvements. Brass retained American Interior Construction & Blind (AICB) as a subcontractor. AICB completed its work in December 2016 and AICB alleged that Brass failed to pay AICB in full. AICB served a timely notice of its intent to file a mechanics’ lien against Benjamin’s Desk. However, AICB used FedEx to deliver its notice of intent. AICB then filed its complaint to enforce the lien claim.

Benjamin’s Desk filed preliminary objections in the nature of a demurrer alleging AICB failed to comply with the service-of-notice requirements under the Mechanics’ Lien Law. In response, AICB filed a response arguing that personal service of the formal notice by FedEx is personal service by an adult in the same manner as a writ of summons in assumpsit and therefore was expressly permitted by section 501(d) of the Pennsylvania’s Mechanics’ Lien Act of 1963 (Lien Law), 49 P.S. Section 1501(d).

Section 501(d) of the Mechanics’ Lien Law of 1963 provides that formal notice of intent to lien “may be served by first class, registered or certified mail on the owner or his agent or by an adult in the same manner as a writ of summons in assumpsit or if service cannot be so made then by posting … the improvement.”

The trial court sustained the preliminary objections and struck AICB’s complaint for lack of proper notice. AICB timely appealed. The primary issue before the Superior Court was whether a subcontractor may properly serve its formal notice of intent to lien via FedEx.

The Superior Court looked to Pennsylvania Rule of Civil Procedure 400.1, which governs the service of original process for actions commenced in Philadelphia. This rule states in relevant part, “In an action commenced in the first Judicial District, original process may be served … within the county by the sheriff or a competent adult.” The Pennsylvania Supreme Court had previously interpreted Rule 400.1 as it related to the delivery of a praecipe to issue a writ of summons via certified mail. The Supreme Court had held that neither prior Pennsylvania cases nor the rules themselves contemplated punishing a plaintiff for technical missteps “where he has satisfied the purpose of the statute of limitations by supplying a defendant with actual notice.” See McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2005). Thus, pursuant to McCreesh as interpreted by the Superior court in American Interior, “technical noncompliance” with the Rules of Civil Procedure for original process may be excused “absent intent to stall the judicial machinery or actual prejudice.”

Applying that rule to the record before it, the Superior Court reversed and reinstated AICB’s complaint because “even if AICB failed to comply with the service requirements for original process, Benjamin’s Desk received actual notice and no party has alleged an intent to stall or actual prejudice.” The Superior Court’s reliance on McCreesh may implicitly suggest service of formal notice of intent to lien via FedEx is neither acceptable service by mail under Section 501(d) of the Lien Law nor acceptable service by competent adult under Rule 400.1(a)(1). However, the American Interior opinion makes clear that technical compliance with the lien law’s service-of-notice requirement will be excused and service of a formal notice of intent to lien will be upheld as long as the owner actually receives the notice, the manner was not intended to stall the judicial machinery, and the owner suffered no prejudice as a result of the technically improper service. Given this standard, service by FedEx was permissible in American Interior and likely will be in all other cases going forward.

Superior Court declares that grounds for statutory preliminary objections to a mechanics’ lien claim are waived if not asserted in (or prior to the filing of) responsive pleading to the complaint to obtain judgment on the lien.

Section 505 of the Lien Law, 49 P.S. Section 1505, provides, “any party may preliminarily object to a mechanics’ lien claim upon a showing of an exemption or immunity of the property from lien, or for lack of conformity with this act … Failure to file an objection preliminarily shall not constitute a waiver of the right to raise the same as a defense in subsequent proceedings.” Thus, Section 505 seems to suggest that the statutory defenses to a lien claim (i.e., immunity of the property from lien or failure to perfect the lien in accordance with the requirements of the Lien Law) cannot be waived and may be asserted at any time to invalidate a mechanics’ lien. However, in Terra Firma Builders v. King, 215 A.3d 1002 (Pa. Super. Ct. 2019), the Pennsylvania Superior Court expressly rejected this interpretation of Section 505.

In Terra Firma Builders, the mechanics’ lien claimant failed to properly perfect its lien because it did not file an affidavit of service for the lien as required by Section 502(a)(2) of the Lien Law, 49 P.S. Section 1502(a)(2). However, the property owners did not file statutory preliminary objections seeking to strike the lien as improperly perfected, nor did they file preliminary objections to the claimant’s complaint to obtain judgment on the lien pursuant to the Pennsylvania Rules of Civil Procedure challenging the propriety of service.

After the close of pleadings, the lien action was consolidated with the claimant’s civil action for breach of contract and the consolidated cases went to trial. Following trial, judgment was entered in favor of the owners and the parties filed post-trial motions. With those post-trial motions pending, the owners filed a motion to strike the lien for failure to comply with the lien law due to failure to file an affidavit of service.

The trial court interpreted the owners’ motion to strike as a preliminary objection under Section 505, read that statutory section to allow an owner to file statutory preliminary objections at any time, even after the enforcement action and trial is over, and struck the lien for failure to comply with the Lien Law’s procedural requirements.

On appeal, a divided panel of the Superior Court reversed, with Senior Judge Dan Pellegrini and Judge Deborah A. Kunselman holding that that the word “preliminary” as used in Section 505 of the Lien Law must have some meaning. Thus, according to the majority, Section 505 must be construed as requiring an owner to assert Section 505 defenses “in the enforcement proceeding in accordance with the manner provided for in the applicable rules of civil procedure.” The majority went on to conclude that because “the lack of service defense to the claim was not raised by preliminary objection or new matter as required under the Rules of Civil Procedure in the enforcement proceeding,” the “owners’ motion to strike was untimely and the issue was raised.”

In dissent, Judge Mary P. Murray argued that “Section 505 unambiguously places no limit on when a party may raise a defense to the enforcement of the lien” and allows an owner to move to strike a lien at any time, even after the conclusion of enforcement proceedings. On March 10, the Pennsylvania Supreme Court agreed to hear the owners’ appeal of the Superior Court’s decision. Thus, in the coming months, we should expect more clarity on the proper interpretation of Section 505.

For the full article, click here.

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