Articles, Alerts & Perspectives

Home Field Advantage: EEOC To Prioritize American Workers

The Legal Intelligencer

(by Erin Hamilton and Cella Iovino)

On February 19, 2025, United States Equal Employment Opportunity Commission (EEOC) Acting Chair Andrea Lucas announced that the agency will direct its focus on protecting American workers from unlawful national origin discrimination (the “February 2025 EEOC Guidance”). In a shift from previous priorities usually relating to the prevention of discrimination against foreign nationals and historically marginalized groups, the EEOC’s new enforcement priority will likely lead to an increase in investigations, compliance checks, and litigation relative to the protection of American workers from alleged discrimination.

Applying to employers with 15 or more employees, Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employment discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), and national origin. National origin discrimination occurs when an applicant or employee is treated unfairly due to their country of origin, ethnicity, accent, or because they are perceived to belong to a particular ethnic group, regardless of whether they actually do. In conjunction with its enforcement of Title VII and other federal laws against workplace discrimination and harassment, the EEOC periodically releases guidance to assist employers with compliance.

Traditionally, and under previous administrations, the EEOC focused its national origin enforcement efforts on protecting foreign nationals from employment bias. However, the Trump administration has made its intention to focus on protecting American citizens from what it characterizes as anti-American bias clear. In the press release, Acting Chair Lucas highlighted that this policy shift “will help deter illegal migration and reduce the abuse of legal immigration programs by increasing enforcement of employment antidiscrimination laws against employers that illegally prefer non-American workers, as well as against staffing agencies and other agents that unlawfully comply with client companies’ illegal preferences against American workers.” Further, Acting Chair Lucas opined that the agency will be paying particular attention to employer’s policies and practices which appear to show preference to undocumented individuals, migrant workers, and visa holders over American workers.

The agency’s shift in focus is already making an impact. In a recent settlement, LeoPalace Guam Corporation, operating as LeoPalace Resort in Guam, agreed to pay $1,412,500.00 to resolve a case brought by the EEOC in which it alleged that the resort favored Japanese employees over non-Japanese employees, including American nationals. Specifically, the suit claimed that the resort paid non-Japanese employees less wages, gave them less benefits, and subjected them to worse terms and conditions of employment in comparison to Japanese employees in similar or lower positions. See EEOC v. LeoPalace Guam Corp. d/b/a LeoPalace Resort, Case No. 1:25-cv-00004 (D. Guam 2025). In addition to the settlement payment, the resort also agreed to equitable relief including hiring an external equal employment opportunity monitor to oversee compliance, training, and review of policies and procedures and conducting periodic audits.

Businesses and corporate entities who sponsor foreign workers via work visas or those that typically hire immigrants and/or foreign nationals are likely to be particularly affected by the February 2025 EEOC Guidance. Practical strategies to consider in light of the February 2025 EEOC Guidance include:

• Conducting an internal audit of all recruitment, hiring, benefits, compensation and promotion policies to ensure they address national original hiring, employment, work conditions, benefits and compensation in a neutral manner;

• Ensure all current and future job postings and hiring selection criteria are neutral as to national origin;

• Provide training to management and human resources staff on the requirements of Title VII including its prohibition against national origin discrimination and the February 2025 EEOC Guidance;

• Ensure that any third-party staffing agencies and/or recruiters being utilized are aware of Title VII’s prohibition against national origin discrimination and are aware of the February 2025 EEOC Guidance;

• Confirm that any visa programs, including H-1B programs, are not being utilized to displace American workers; and

• Ensure that pay and working conditions for similarly situated foreign workers and American workers are generally consistent.

Businesses and corporate entities that employ and/or recruit foreign workers should be particularly vigilant in monitoring future EEOC guidance. lawsuits, and other developments based on national origin discrimination in the coming months.

If you have questions about unlawful national origin discrimination or the February 2025 EEOC Guidance please contact Erin Lucas Hamilton at 412-394-6978 or ehamilton@babstcalland.com or Francesca C. Iovino at 412-394-6460 or fiovino@babstcalland.com.

Erin Hamilton is a shareholder in the Employment and Labor and Litigation groups of Babst Calland. Ms. Hamilton has significant experience advising and litigating relative to employment matters including the defense of discrimination and harassment claims as well as defending and prosecuting restrictive covenant, non-competition/solicitation, trade secret misappropriation and employee/executive employment contract disputes. Her experience spans a wide variety of industries, including but (not limited to) energy and natural resources, aviation, engineering, construction, manufacturing, technology, professional sports, banking, insurance and financial services.

Francesca (Cella) Iovino is an associate in the Employment and Labor and Litigation groups of Babst Calland. Ms. Iovino’s experience encompasses all phases of litigation, including a focus on representing clients in complex employment disputes related to discrimination claims, harassment claims, wrongful termination, wage and hour violations, and unionization.

To view the full article, click here.

Reprinted with permission from the April 3, 2025 edition of The Legal Intelligencer© 2025 ALM Media Properties, LLC. All rights reserved.

EPA Announces Expansive Deregulatory Plan

GO-WV

(by Gary Steinbauer, Jessica Deyoe and Ethan Johnson)

On March 12, 2025, U.S. Environmental Protection Agency Administrator Lee Zeldin announced a sweeping plan to “undertake 31 historic actions in the most consequential day of deregulation in U.S. history.” The announcement states that the deregulatory plan is intended to “advance President Trump’s Day One executive orders and Power the Great American Comeback.” EPA states that these actions “will roll back trillions in regulatory costs and hidden ‘taxes’ on U.S. families,” making it “more affordable to purchase a car, heat homes, and operate a business.”

The ambitious plan identifies numerous past EPA regulations or actions that will be reconsidered or reviewed. The regulations identified in the deregulatory plan, which were promulgated under the Clean Air Act, Clean Water Act, and the Resource Conservation and Recovery Act, apply to a wide range of industrial sectors and regulated parties. Although described as “31 actions,” the EPA’s primary announcement lists 22 different items, with some mentioning more than one regulation or past action set to be reconsidered or otherwise addressed as part of the plan. EPA’s list is also separated by headings that appear to correspond to separate Day One executive actions by President Trump. For each of the planned deregulatory actions, EPA issued an accompanying press release providing additional information, including, in a few cases, anticipated timelines for completing the deregulatory actions and planned interim actions.

The Babst Calland team has summarized the identified deregulatory actions and information provided by EPA in the table below:

With  limited exceptions, EPA provides few details on the timing and steps it will take for each of the identified actions. In multiple announcements, EPA states or implies that it will undertake notice and comment rulemaking under the Administrative Procedure Act. Notably, EPA does not address steps it may take in pending litigation regarding several of the identified regulations. Nor does EPA mention whether the planned deregulatory actions satisfy directives under President Trump’s other Executive Orders, such as the “Ensuring Lawful Government and Implementing the President’s ‘Department of Government Efficiency Regulatory Initiative’” and  “Unleashing Prosperity Through Deregulation” orders.

The deregulatory plan will require significant resources and time to implement at a time when EPA’s new political leadership is seeking to drastically cut costs and staff. Although several of the identified deregulatory actions may take years to complete, stakeholders subject to the identified deregulatory actions must evaluate and consider developing strategies for productively engaging with EPA during the expected rulemakings and related actions. Major environmental groups have denounced EPA’s deregulatory plan and are vowing to challenge the EPA.

Babst Calland’s Environmental Practice Group will be closely tracking the steps EPA takes to implement the deregulatory plan. Updates will be provided as significant developments arise. Babst Calland attorneys are available to provide strategic advice on how EPA’s sweeping deregulatory plan may affect your business today and in the future. For more information or answers to questions, please contact Gary Steinbauer at (412) 394-6590 or gsteinbauer@babstcalland.com, Jessica Lynn Deyoe at (202) 853-3489 or jdeyoe@babstcalland.com, Ethan Johnson at (202) 853-3465 or ejohnson@babstcalland.com, or your Babst Calland relationship attorney.

Click here, to view the article online in the April issue of GO-WV News.

[1] This announcement was not part of EPA’s main announcement of the “Biggest Deregulatory Action in U.S. History,” but it was announced separately on March 12, 2025.

Treasury Department Suspends Enforcement of Corporate Transparency Act’s BOI Reporting Requirements

PIOGA Press

(by Chris Farmakis, Susanna Bagdasarova, Kate Cooper, and Dane Fennell)

In yet another twist in the ongoing roller coaster ride of Corporate Transparency Act (CTA) compliance, the U.S. Department of the Treasury’s (Treasury Department) Financial Crimes Enforcement Network (FinCEN) has paused enforcement of the CTA’s beneficial ownership information (BOI) reporting requirements. On February 27, 2025, FinCEN issued a press release stating that it “will not issue any fines or penalties or take any other enforcement actions against any companies based on any failure to file or update beneficial ownership information (BOI) reports…by the current deadlines.” Instead, FinCEN plans to issue an interim final rule by March 21, 2025 (the previously extended deadline for most reporting companies), which will set new deadlines and prioritize BOI reporting for entities that “pose the most significant law enforcement and national security risks.”

This announcement was rapidly followed by a Treasury Department press release on March 2, 2025 taking things a step further in announcing that U.S. citizens and domestic reporting companies will not be subject to any penalties or fines for failing to file or update BOI reports, even after the new reporting deadlines are established. The Treasury Department further indicated that it plans to issue a proposed rulemaking to narrow the scope of the BOI reporting requirements to foreign reporting companies only. Treasury Department Secretary Scott Bessent emphasized that the latest announcement is part of the Trump administration’s efforts to support American small businesses by removing burdensome regulations, describing the move as a “victory for common sense.”

What does this mean for reporting companies? Although we await more specific guidance and rulemaking from FinCEN, only “foreign reporting companies” (entities formed under the law of a foreign country and registered to do business in any U.S. state or tribal jurisdiction) will be subject to enforcement action for failure to comply with BOI reporting requirements. “Domestic reporting companies” (entities created by the filing of a document with a secretary of state or similar office under the law of a U.S. state or Indian tribe) and U.S. citizens who are beneficial owners will not face enforcement action and will be exempted from such requirements per a future rulemaking. The impact of these recent announcements on the ongoing litigation concerning the CTA or on legislative efforts to delay or repeal the CTA remains uncertain.

Babst Calland will continue to closely monitor developments on this matter. Please reach out to fincenassist@babstcalland.com or your Babst Calland contact if you have any questions.

To view the full article, click here.

Reprinted with permission from the March 2025 issue of The PIOGA Press. All rights reserved.

EPA Announces Expansive Deregulatory Plan

Firm Alert

(by Gary Steinbauer, Jessica Deyoe and Ethan Johnson)

On March 12, 2025, U.S. Environmental Protection Agency Administrator Lee Zeldin announced a sweeping plan to “undertake 31 historic actions in the most consequential day of deregulation in U.S. history.” The announcement states that the deregulatory plan is intended to “advance President Trump’s Day One executive orders and Power the Great American Comeback.” EPA states that these actions “will roll back trillions in regulatory costs and hidden ‘taxes’ on U.S. families,” making it “more affordable to purchase a car, heat homes, and operate a business.”

The ambitious plan identifies numerous past EPA regulations or actions that will be reconsidered or reviewed. The regulations identified in the deregulatory plan, which were promulgated under the Clean Air Act, Clean Water Act, and the Resource Conservation and Recovery Act, apply to a wide range of industrial sectors and regulated parties. Although described as “31 actions,” the EPA’s primary announcement lists 22 different items, with some mentioning more than one regulation or past action set to be reconsidered or otherwise addressed as part of the plan. EPA’s list is also separated by headings that appear to correspond to separate Day One executive actions by President Trump. For each of the planned deregulatory actions, EPA issued an accompanying press release providing additional information, including, in a few cases, anticipated timelines for completing the deregulatory actions and planned interim actions.

The Babst Calland team has summarized the identified deregulatory actions and information provided by EPA in the table below:

With  limited exceptions, EPA provides few details on the timing and steps it will take for each of the identified actions. In multiple announcements, EPA states or implies that it will undertake notice and comment rulemaking under the Administrative Procedure Act. Notably, EPA does not address steps it may take in pending litigation regarding several of the identified regulations. Nor does EPA mention whether the planned deregulatory actions satisfy directives under President Trump’s other Executive Orders, such as the “Ensuring Lawful Government and Implementing the President’s ‘Department of Government Efficiency Regulatory Initiative’” and  “Unleashing Prosperity Through Deregulation” orders.

The deregulatory plan will require significant resources and time to implement at a time when EPA’s new political leadership is seeking to drastically cut costs and staff. Although several of the identified deregulatory actions may take years to complete, stakeholders subject to the identified deregulatory actions must evaluate and consider developing strategies for productively engaging with EPA during the expected rulemakings and related actions. Major environmental groups have denounced EPA’s deregulatory plan and are vowing to challenge the EPA.

Babst Calland’s Environmental Practice Group will be closely tracking the steps EPA takes to implement the deregulatory plan. Updates will be provided as significant developments arise. Babst Calland attorneys are available to provide strategic advice on how EPA’s sweeping deregulatory plan may affect your business today and in the future. For more information or answers to questions, please contact Gary Steinbauer at (412) 394-6590 or gsteinbauer@babstcalland.com, Jessica Lynn Deyoe at (202) 853-3489 or jdeyoe@babstcalland.com, Ethan Johnson at (202) 853-3465 or ejohnson@babstcalland.com, or your Babst Calland relationship attorney.

[1] This announcement was not part of EPA’s main announcement of the “Biggest Deregulatory Action in U.S. History,” but it was announced separately on March 12, 2025.

Data Centers and Our Region

OnRAMP Magazine

(by Moore Capito and Justine Kasznica)

Data center is fast becoming a household term.

Nearly everyone in the modern world benefits from data centers. As the “backbone” of digital infrastructure, data centers are becoming more and more critical in meeting the demands of the modern digital world. With advances in artificial intelligence (AI) and the increased reliance on computing by people all over the world, demand for data centers is outpacing supply.

We are in a global modern-day gold rush to build data centers. And just as the 49ers faced infrastructure challenges of the day, data center developers are facing a critical infrastructure obstacle: energy.

A data center is a physical facility that houses servers that manage, store, and process data. There are several types of data centers, and while all do not require the same prerequisites to develop, they all require vast amounts of electricity. According to the United States Department of Energy, data centers account for 2 % of the electricity usage in the country consuming 10 to 50 times more electricity per floor space than a typical commercial structure.

The electricity required to power data centers is adding stress on grids that are already pushing the limits. Utilities are having difficulty guaranteeing the level of power required to sustain current demand and meet projected future demand. As a result, developers are evaluating alternative ways to power their projects.

Recently, Microsoft entered into a power purchase agreement with Constellation Energy to reopen Three Mile Island to power their data centers and Amazon Web Services (AWS) purchased Talen Energy’s 1,200 acre data center campus which provides direct power from the Susquehanna Steam Electric Station. Tech companies and developers are no longer waiting on the utilities and are trending toward establishing dedicated power sources. This trend provides energy rich states an incredible opportunity.

Energy companies are actively exploring how to provide direct power ranging from laying additional pipelines to evaluating construction of new power plants dedicated to powering data centers. As evidenced by the recent Constellation Energy and Talen Energy deals, states like West Virginia and Pennsylvania offer an attractive proposition to data center developers – access to vast amounts of energy sources, affordable land and proximity to densely populated areas. Additionally, our two states boast incredible research and development institutions, including Carnegie Mellon University, the global leader in artificial intelligence (AI) research and development. As a result, this region is well positioned to be the next hub for data center development.

Of course, there are challenges. Navigating the regulatory environment, finding suitable property, and identifying partners with available energy supply are just a few. Our firm, Babst Calland, specializes in environmental, energy, and emerging technologies law. As such, we are perfectly situated to connect those pieces because we understand each geographic footprint and tailor legal strategies accordingly, with a deep knowledge of state regulation and local jurisdictions. We provide the cross-disciplinary legal team to address these challenges and support regional and national data center projects.

The demand for data centers is growing and projected to grow even faster. We know the greatest challenge is meeting the electricity requirements. We have an abundant supply of natural resources, affordable land, artificial intelligence research and development, and proximity to densely populated areas. Now is the time to leverage those strengths. If we do so, our region is poised to benefit greatly from this rush for data centers.

With increased demand for complex data center development, whether navigating potential legal challenges related to financing, project siting, land acquisition, zoning, or regulatory compliance, Babst Calland is prepared to address the region’s most pressing concerns.

To view the full article, click here.

Treasury Department Suspends Enforcement of Corporate Transparency Act’s BOI Reporting Requirements

Pittsburgh Technology Council

(by Chris Farmakis, Susanna Bagdasarova, Kate Cooper, and Dane Fennell)

In yet another twist in the ongoing roller coaster ride of Corporate Transparency Act (CTA) compliance, the U.S. Department of the Treasury’s (Treasury Department) Financial Crimes Enforcement Network (FinCEN) has paused enforcement of the CTA’s beneficial ownership information (BOI) reporting requirements. On February 27, 2025, FinCEN issued a press release stating that it “will not issue any fines or penalties or take any other enforcement actions against any companies based on any failure to file or update beneficial ownership information (BOI) reports…by the current deadlines.” Instead, FinCEN plans to issue an interim final rule by March 21, 2025 (the previously extended deadline for most reporting companies), which will set new deadlines and prioritize BOI reporting for entities that “pose the most significant law enforcement and national security risks.”

This announcement was rapidly followed by a Treasury Department press release on March 2, 2025 taking things a step further in announcing that U.S. citizens and domestic reporting companies will not be subject to any penalties or fines for failing to file or update BOI reports, even after the new reporting deadlines are established. The Treasury Department further indicated that it plans to issue a proposed rulemaking to narrow the scope of the BOI reporting requirements to foreign reporting companies only. Treasury Department Secretary Scott Bessent emphasized that the latest announcement is part of the Trump administration’s efforts to support American small businesses by removing burdensome regulations, describing the move as a “victory for common sense.”

What does this mean for reporting companies? Although we await more specific guidance and rulemaking from FinCEN, only “foreign reporting companies” (entities formed under the law of a foreign country and registered to do business in any U.S. state or tribal jurisdiction) will be subject to enforcement action for failure to comply with BOI reporting requirements. “Domestic reporting companies” (entities created by the filing of a document with a secretary of state or similar office under the law of a U.S. state or Indian tribe) and U.S. citizens who are beneficial owners will not face enforcement action and will be exempted from such requirements per a future rulemaking. The impact of these recent announcements on the ongoing litigation concerning the CTA or on legislative efforts to delay or repeal the CTA remains uncertain.

Babst Calland will continue to closely monitor developments on this matter. Please reach out to fincenassist@babstcalland.com or your Babst Calland contact if you have any questions.

To read the full article, click here.

U.S. Supreme Court Invalidates NPDES Permit End-Result Provisions

Environmental Alert

(by Lisa Bruderly, Joseph Schaeffer, and Alexandra Graf)

On March 4, 2025, the U.S. Supreme Court held in a 5-4 decision in City and County of San Francisco v. EPA, et al. that the U.S. Environmental Protection Agency (EPA) lacks authority under the federal Clean Water Act (CWA) to impose National Pollutant Discharge Elimination System (NPDES) permit requirements that condition compliance on whether receiving waters meet applicable water quality standards (i.e., “end-result” requirements).  NPDES permits are issued to allow point sources discharges of pollutants into waters of the United States.  These permits typically include limitations as to the quality/quantity of effluent that can be discharged (i.e. effluent limitations).  Some permits also require best management practices to reduce pollution in discharges (i.e., narrative requirements).  While the Supreme Court did not question the imposition of effluent limitations or narrative requirements, the issue at hand pertained to whether NPDES permits can include “end-result” requirements (e.g., a requirement that a discharge cannot exceed water quality standards).

In 2019, two end-result requirements were added to San Francisco’s NPDES permit for its combined wastewater treatment facilities that prohibited the facility from: (1) making any discharge that “contributes to a violation of any applicable water quality standard” for receiving waters, and (2) performing any treatment or making any discharge that “create[s] pollution, contamination, or nuisance as defined by California Water Code section 13050.”

The U.S. Supreme Court granted certiorari after the Ninth Circuit denied San Francisco’s petition and held that §1311(b)(1)(C) of the CWA allows EPA to impose “any” limitations that ensure the applicable water quality standards are satisfied in a receiving body of water.  This is the Court’s first major CWA case since Sackett v. EPA in 2023, which narrowed the extent of wetlands under the jurisdiction of the CWA.

Before the Supreme Court, San Francisco argued that EPA overstepped its statutory authority under the CWA by imposing end-result provisions, while EPA argued it had authority under §1311(b)(1)(C) to mandate “any more stringent limitation” to meet applicable water quality standards, including inserting end-result language in NPDES permits.

The majority opinion, authored by Justice Samuel Alito, held that §1311(b)(1)(C) “does not authorize NPDES permit requirements conditioning compliance on receiving water quality.”  The Court evaluated the plain meaning of “meet” and “implement,” as these terms appear in §1311(b)(1)(C), and stated that this section of the CWA “tells EPA to impose requirements to ‘implement’ water quality standards – that is to ‘ensure’ ‘by concrete measures’ that they are ‘actual[ly]’ fulfilled.”  Imposing an end-result requirement “simply states the desired result; it does not implement that result.”  As support for its position, the Court compared the CWA’s emphasis of placing “direct restrictions” on dischargers with the “backward-looking model” of its predecessor, the Water Pollution Control Act, which held a permittee liable if its receiving water quality did not meet water quality standards.

Justice Alito opined that end-result requirements are contrary to the protections provided by the CWA’s “permit shield,” because a permittee could comply with all requirements of its NPDES permit and still face enforcement and penalties if the receiving water’s quality dropped below designated standards.  Moreover, the Court noted that, when more than one permittee discharges to a receiving water, end-result requirements prohibit EPA from fairly allocating responsibility among multiple dischargers contributing to water quality violations.  Therefore, the Court reversed the Ninth Circuit and held that “§1311(b)(1)(C) does not authorize the EPA to include ‘end-result’ provisions in NPDES permits.”

Justice Amy Coney Barrett authored the dissent in part, arguing that the CWA gives EPA broad authority to ensure state water quality standards are maintained, and EPA should have the ability to ensure compliance through end-result NPDES permit conditions.

As a practical implication of the ruling, EPA and authorized state agencies likely will not be able to impose or enforce permit restrictions that do not provide clear direction on how to comply with the conditions.  Permittees should examine their NPDES permits for these existing conditions.  For new or renewal permits, this decision could lead EPA to require submittal of additional information about a facility’s discharge during the application process, which may delay permitting processes and increase costs.

For more information on the implications of the Supreme Court’s decision in City and County of San Francisco v. EPA, et al. or water-related matters, in general, please contact Lisa Bruderly at (412) 394-6495 or lbruderly@babstcalland.com, Joseph Schaeffer at (412) 394-5499 or jschaeffer@babstcalland.com, or Alexandra Graf at (412) 394-6438 or agraf@babstcalland.com.

Treasury Department Suspends Enforcement of Corporate Transparency Act’s BOI Reporting Requirements

Firm Alert

(by Chris Farmakis, Susanna Bagdasarova, Kate Cooper, and Dane Fennell)

In yet another twist in the ongoing roller coaster ride of Corporate Transparency Act (CTA) compliance, the U.S. Department of the Treasury’s (Treasury Department) Financial Crimes Enforcement Network (FinCEN) has paused enforcement of the CTA’s beneficial ownership information (BOI) reporting requirements. On February 27, 2025, FinCEN issued a press release stating that it “will not issue any fines or penalties or take any other enforcement actions against any companies based on any failure to file or update beneficial ownership information (BOI) reports…by the current deadlines.” Instead, FinCEN plans to issue an interim final rule by March 21, 2025 (the previously extended deadline for most reporting companies), which will set new deadlines and prioritize BOI reporting for entities that “pose the most significant law enforcement and national security risks.”

This announcement was rapidly followed by a Treasury Department press release on March 2, 2025 taking things a step further in announcing that U.S. citizens and domestic reporting companies will not be subject to any penalties or fines for failing to file or update BOI reports, even after the new reporting deadlines are established. The Treasury Department further indicated that it plans to issue a proposed rulemaking to narrow the scope of the BOI reporting requirements to foreign reporting companies only. Treasury Department Secretary Scott Bessent emphasized that the latest announcement is part of the Trump administration’s efforts to support American small businesses by removing burdensome regulations, describing the move as a “victory for common sense.”

What does this mean for reporting companies? Although we await more specific guidance and rulemaking from FinCEN, only “foreign reporting companies” (entities formed under the law of a foreign country and registered to do business in any U.S. state or tribal jurisdiction) will be subject to enforcement action for failure to comply with BOI reporting requirements. “Domestic reporting companies” (entities created by the filing of a document with a secretary of state or similar office under the law of a U.S. state or Indian tribe) and U.S. citizens who are beneficial owners will not face enforcement action and will be exempted from such requirements per a future rulemaking. The impact of these recent announcements on the ongoing litigation concerning the CTA or on legislative efforts to delay or repeal the CTA remains uncertain.

Babst Calland will continue to closely monitor developments on this matter. Please reach out to fincenassist@babstcalland.com or your Babst Calland contact if you have any questions.

DEP Announces Availability of Draft Technical Guidance for Maintaining Freeboard and Dewatering of Well Development Impoundments for Unconventional Oil and Gas Operations

FNREL Water Law Newsletter

(by Lisa M. Bruderly, Jessica Deyoe and Mackenzie Moyer)

On January 4, 2025, the Pennsylvania Department of Environmental Protection (DEP) announced the availability of draft Technical Guidance for Maintaining Freeboard and Dewatering of Well Development Impoundments for Unconventional Oil and Gas Operations (Draft Guidance). See 55 Pa. Bull. 146 (Jan. 4, 2025).

The purpose of this Draft Guidance is to assist unconventional operators with how to comply with the Pennsylvania Clean Streams Law and associated regulations regarding freeboard maintenance and dewatering of well development impoundments (WDI) through land application of excess water. The Draft Guidance discusses dewatering when there is no liner in the impoundment, such as during construction and restoration phases, as well as when there is a liner in the impoundment during operational and decommissioning phases. It advises how excess water due to precipitation should be managed during construction, operation, decommissioning, and restoration phases of WDIs to prevent WDIs from overflowing and undermining the structural integrity of the WDI.

For example, before a liner is installed, or after a liner is removed, operators may need to dewater the unlined WDI to allow construction or restoration activities to continue. The Draft Guidance advises that operators should confirm and document that no regulated substances have been added or have accumulated in the water and specifies 16 different conditions that should be followed in confirming and documenting such information.

Once a liner is installed and the WDI is filled with surface water, fresh groundwater, or other fluids approved by DEP, maintaining freeboard in the WDI is necessary to ensure its safe operation. The Draft Guidance indicates that the Office of Oil and Gas Management, when necessary, will consider periodic land application from WDIs to maintain freeboard, with a recommendation that a minimum of two feet of freeboard always be maintained in WDIs to prevent the WDI from overflowing. If the Draft Guidance is approved as currently drafted, before proposing any land applications of water from the WDI, operators should sample the water in the WDIs, and the results should not exceed the maximum limits for contaminants found in Appendix A of the Draft Guidance. Appendix A contains maximum contaminant concentrations that were derived from drinking water standards, water quality standards for rivers and streams, and typical values observed in freshwater rivers and streams. Sample results from the accredited laboratory that performed the analysis should be submitted to DEP.

The Draft Guidance discusses that a WDI Dewatering Plan be submitted and approved by DEP before land applying water from a lined WDI that is in operation or being decommissioned. This Dewatering Plan should discuss the narrative requirements, as outlined in Section IV of the Draft Guidance, and include a map and aerial photograph of the facility. The narrative requirements include the history of use of any chemical additions as well as a proposed sample plan or current sample results from the WDIs.

Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado

Environmental Quality Board to Consider Proposed Notification Rules for Unauthorized Spills into Waters of the Commonwealth

The Foundation Mineral and Energy Law Newsletter

Pennsylvania – Mining

(by Joe Reinhart, Sean McGovern and Christina Puhnaty)

In November 2024, the Pennsylvania Department of Environmental Protection (PADEP) submitted to the Pennsylvania Environmental Quality Board (Board) a proposed rule that would establish notification requirements for persons reporting unauthorized discharges to waters of the Commonwealth under 25 Pa. Code § 91.33. Section 91.33 currently requires the person responsible for an unauthorized discharge to immediately notify PADEP if a discharge results in pollution, creates a danger of pollution of the waters of the Commonwealth, or would damage property. PADEP’s proposed rule references 40 C.F.R. § 117.3 to identify a list of reportable substances and quantities that require immediate PADEP notification if discharged into waters of the Commonwealth and outlines five categories of factors for consideration when determining if an unauthorized discharge does not require immediate PADEP notification. Those five categories are:

1. properties of the substance or substances involved;
2. location or locations involved;
3. weather conditions before, during and after the incident;
4. presence and implementation of adequate response plans, procedures or protocols; and
5. duration of the accident or other activity or incident.

PADEP’s preamble to the proposed rule provides that

[i]f any single one of the following factors, or a combination of the factors, can adequately establish that there is no risk of the substance reaching waters of the Commonwealth, no further analysis of the other considerations is necessary to determine that immediate Department notification is not required. This may be the case when a spill occurs into secondary containment or where a spill response plan is used to immediately capture all of a substance with low mobility.

PADEP’s proposed rulemaking further requires a person to maintain documentation regarding a decision not to notify PADEP of an unauthorized discharge and a signed statement attesting to the document’s accuracy must accompany the documentation if it is provided to PADEP at PADEP’s request.

The Board adopted the proposed rule at its November 12, 2024, meeting. The proposed rule will be published in the Pennsylvania Bulletin for a 60-day public comment period.

PADEP Issues Clarification for Blast Site Buffer Area in Noncoal Mining Operations Rules
The Pennsylvania Department of Environmental Protection (PADEP) issued a final rule correcting an inconsistency between the noncoal mining regulations in 25 Pa. Code ch. 77 and the storage, handling, and use of explosives regulations in 25 Pa. Code ch. 211. Noncoal mine operators are required to conduct blasting operations with explosives in compliance with these two chapters. Chapter 211 provides that when explosives are being loaded into drill holes ahead of a blast, the blast site plus a buffer zone of 50 feet around the blast site must be cleared of all persons and equipment except those necessary to prepare for the blast. Prior language at 25 Pa. Code § 77.564(g)(7), however, required “work within a radius of 50 feet of the blast area” to cease, which PADEP determined resulted in “a larger disruption of activities at a noncoal mine than is necessary to ensure mine worker and public safety, which was not intended and is not consistent with the same safety requirements in Chapter 211.” Exec. Summary, Final-Omitted Rulemaking: Blast Site Clarification for Noncoal Mining Operations (Nov. 12, 2024). PADEP has revised section 77.564(g)(7) to resolve this inconsistency by replacing the term “blast area” (defined in 25 Pa. Code § 211.101 as “the area around the blast site that must be cleared and secured to prevent injury to persons and damage to property”) with “blast site” (defined in section 211.101 as “the specific location where the explosives charges are loaded into the blast holes”).

Governor Shapiro Signs Executive Order Adding Pennsylvania Permit Fast Track Program to Administration’s Broader Efforts to Improve Permitting Processes
On November 19, 2024, Governor Josh Shapiro signed Executive Order 2024-04 (EO 2024-04) creating the Pennsylvania Permit Fast Track Program (Program). According to its website, the Program “streamlines permitting for high-impact economic development and infrastructure projects in Pennsylvania that require multiple permits from different Commonwealth agencies.” Commw. of Pa., “PA Permit Fast Track Program,” available here. EO 2024-04 states that the Program’s purpose is to “enhance public awareness, collaboration, accountability, coordination, transparency, and predictability in the Commonwealth’s permitting, licensing, and authorizations processes for critical infrastructure projects and projects delivering significant economic development to Pennsylvanians” through a collaborative process between the government and stakeholders. EO 2024-04, § 1.

EO 2024-04 directs the state Office of Transportation and Opportunity to take certain actions to implement the Program. These include: (1) issuing program guidance, offering training, and providing technical assistance to implement the Program; (2) determining if a project is eligible to participate in the Program; (3) providing project management services via coordination with the Governor’s office, e.g., developing coordinated timelines across relevant agencies; and (4) assisting with the online dashboard to inform the public of progress and timelines for designated projects. Id. § 2. Permits that may be fast-tracked under the Program include Chapter 102 National Pollutant Discharge Elimination System permits for Construction Stormwater and Industrial Stormwater, Chapter 105 Permits for water obstructions and/or encroachments, and Air Quality Permits. See Program website. Guidance and current Program projects are also listed on the Program’s website. Id.

EO 2024-04 is just one of the Shapiro administration’s ongoing efforts to improve Pennsylvania’s permit programs. On the same day Governor Shapiro signed EO 2024-04 the administration announced that the Pennsylvania Department of Environmental Protection (PADEP) had reduced its permit backlog by 75% since November 2023. News Release, PADEP, “Shapiro Administration Reduces DEP Permit Backlog by 75 Percent, Completely Eliminates Backlog for Oil and Gas Permits” (Nov. 19, 2024). PADEP attributes the reduction to technology investment, reviews to identify bottlenecks, and hiring additional staff. Id. PADEP has also created the Streamlining Permits for Economic Expansion and Development (SPEED) Program, which authorizes approved contractors to review applications for certain permits and recommend to PADEP whether the permit should be approved or denied. Bids to become a qualified reviewer were due by December 31, 2024. More information on the Shapiro administration’s permit modernization efforts is available here.

Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado

Environmental Groups’ Petition to Amend Regulations to Increase Setbacks from Oil and Gas Wells Clears Initial Regulatory Requirements

The Foundation Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(Joseph K. Reinhart, Sean M. McGovern, Gina F. Buchman and Matthew C. Wood)

On November 21, 2024, the Pennsylvania Department of Environmental Protection (PADEP) notified the Clean Air Council (CAC) and Environmental Integrity Project (EIP) that the agency had reviewed their rulemaking petition requesting amendments to 25 Pa. Code Chapter 78a and determined that it complies with the petition policy of the Environmental Quality Board (EQB). Letter from PADEP (Nov. 21, 2024). Specifically, in October 2024, CAC and EIP submitted a rulemaking petition to increase the minimum setback distances from unconventional oil and gas wells to 3,281 feet from any building and drinking water well; 5,280 feet from any building serving vulnerable populations, e.g., schools, daycare centers, and hospitals; and 750 feet from any surface water of the Commonwealth. See Clean Air Council and Environmental Integrity Project Petition (Oct. 22, 2024) (Petition). Current setback requirements include 500 feet from buildings and 1,000 feet from water supply extraction points.

In their petition, CAC and EIP cite the 2020 43rd Statewide Investigating Grand Jury Report (43rd Grand Jury Report) that concluded, among other things, that the Commonwealth “take action to expand the no-drill zone between fracking and homes from 500 to 2,500 feet and to adopt a more protective no-drill zone of 5,000 feet for schools and hospitals.” Petition at 2 (citing the 43rd Grand Jury Report at 93–94). They also allege that the people living near unconventional oil and gas wells experience negative health consequences, that the wells release dangerous pollution, and the wells contaminate surface and groundwater, and for these reasons, the EQB should increase the minimum setbacks to protect public health and public resources. See generally id. Governor Shapiro has subsequently reported implementing other recommendations from the 43rd Grand Jury Report that he oversaw as then-Attorney General. See, e.g., Press Release, PADEP, “Shapiro Administration, DEP Requires All Fracking Companies to Be More Transparent About Chemicals Used in Drilling” (Jan. 26, 2024).

The petition must clear a number of regulatory hurdles prior to any proposed rulemaking to amend the relevant regulations. Initially, EQB will review the petition at its next regularly scheduled meeting, where CAC and EIP will have an opportunity to offer a presentation on why EQB should accept the petition and PADEP will make a recommendation to EQB whether to accept the petition. 25 Pa. Code § 23.4. EQB can refuse to accept the petition for certain reasons, enumerated in 25 Pa. Code § 23.5, but if EQB accepts the petition, notice of acceptance will be published in the Pennsylvania Bulletin within 30 days. Id. § 23.6. In addition, PADEP has 60 days to prepare a report evaluating the petition, including a recommendation on whether EQB should approve the action requested in the petition; if changing a regulation, PADEP must identify the anticipated date EQB will consider a proposed rulemaking. Id. PADEP must send the report to CAC and EIP, who may submit a written response within 30 days, id. § 23.7, and the report and any CAC and EIP comments will inform PADEP’s ultimate recommendation, id. § 23.8.

If PADEP recommends regulatory amendments, the agency will prepare a proposed rulemaking within six months of sending the report to CAC and EIP; if it does not recommend amendments, PADEP will make a presentation at to EQB at “the first meeting occurring at least 45 days after [PADEP] mailed its report to the petitioner.” Id. After cancelling its December 2024 and February 2025 meetings, EQB’s next meeting is set for March 11, 2025. Meeting materials will be posted to PADEP’s website.

Shapiro Administration Launches Online Resource to Streamline Access to and Provide Information About State Grant Opportunities
On October 30, 2024, the Shapiro administration announced that Secretary for Administration Neil Weaver and the Commonwealth Office of Digital Experience (CODE PA) had launched a new tool to assist stakeholders in learning more about and applying for grants under the more than 300 state grant programs. Press Release, Pa. Office of Admin., “Shapiro Administration Launches New One-Stop Grant Search Tool to Streamline Pennsylvanians’ Access to Government Funding Opportunities” (Oct. 30, 2024). According to the administration, the “Discover State Grants” website is intended to be a comprehensive resource that allows prospective applicants to sort and filter information specific to their needs and will provide links and important information about each grant program to assist in the application process. Id.

The administration said it is working to increase participation in grant programs and “level the playing field for state and federal dollars to benefit communities, small businesses, schools, non-profits, and many others across Pennsylvania.” Id. The website lists numerous grant categories that cover a wide swathe of subcategories, including grants specifically related to the oil and gas industry. For example, grants recently or currently offered under the energy category include the Methane Emissions Reduction Program General Assistance Grant (for operators of 11 or more wells), Methane Emissions Reduction Program Small Operator Assistance Grant (for operators of 10 or fewer wells), and Orphan Oil and Gas Well Plugging Grant Program (for qualified well pluggers). Other categories include Environmental and Water, Law, Justice, and Legal Services, and Transportation. See Commw. of Pa., “Discover State Grants,” here.

Per the Press Release, CODE PA will continue to work on improving the Electronic Single Application, “a shared platform that manages the application and administration processes for grants by multiple state agencies,” and technical challenges identified by grant applicants. More information about CODE PA and its ongoing work on Discover State Grants and other initiatives is available here.

PADEP Releases Guidance and Additional Information on Industrial Decarbonization Grant Program
In November 2024, the Pennsylvania Department of Environmental Protection (PADEP) released guidance regarding its Reducing Industrial Sector Emissions in Pennsylvania (RISE PA) program. RISE PA is an industrial decarbonization grant program funded by a $396-million award through the 2022 Inflation Reduction Act’s Climate Pollution Reduction Grants. The grants seek to fund activities that will reduce greenhouse gas (GHG) emissions from the industrial sector by over 8 million metric tons by 2050. Eligible projects must reduce GHG emissions through industrial electrification, energy efficiency technologies, industrial process technologies, fugitive emission reduction technologies, switching to low-carbon fuels, onsite renewable energy technologies, carbon capture, utilization, and storage technologies, or other technologies to qualify (as determined by RISE PA). PADEP is offering grants for Small-, Medium-, and Large-scale decarbonization projects. The Small-scale award track will only be available to small- and medium-sized manufacturers (500 or fewer employees at the plant site). There is no minimum GHG emissions reduction threshold for Small-scale projects, but the amount of GHG emissions reduction will be considered during the evaluation process. For Medium- and Large-scale grants, applicants must achieve at least a 20% annual facility-wide reduction in GHG emissions per project. Small-scale projects will be eligible for up to $40 million, Medium-scale projects up to $100 million, and Large-scale projects up to $220 million. PADEP plans to begin accepting applications in early 2025, with application review and selection anticipated to begin in the middle of the year.

The future of the program, however, is now uncertain. On the first day of his second term in office, President Trump signed Executive Order No. 14,154, “Unleashing American Energy,” 90 Fed. Reg. 8353 (Jan. 20, 2025), which, among many other things, directed federal agencies to pause clean energy and climate-related funding under the Inflation Reduction Act. While the funding for RISE PA had been allocated to Pennsylvania for the program, the funding has not yet been disbursed.

In a Q&A Webinar on January 24, 2025, PADEP addressed the uncertainty. PADEP noted that it has a fully executed grant award agreement in place with the U.S. Environmental Protection Agency, and that the award cannot lawfully be terminated as long as PADEP maintains compliance with the terms and conditions of the award. While PADEP believes that pausing of disbursements required by the executive order does not directly mention the Climate Pollution Grant Program, the agency admits that there is still uncertainty regarding its receipt of the disbursements. Despite the uncertainty, however, PADEP is moving forward with implementing the program.

Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado

U.S. EPA Approves Class VI Injection Well Primacy in West Virginia

Environmental Alert

(by James Curry, Christopher (Kip) Power, Gary Steinbauer, Gina Falaschi Buchman and Alexandra Graf)

On February 26, 2025, the U.S. Environmental Protection Agency (EPA) published a notice in the Federal Register approving West Virginia’s application for Class VI injection well primary enforcement authority (primacy) pursuant to the Safe Drinking Water Act (SDWA) underground injection control (UIC) program. West Virginia is the first state in the Eastern U.S. to receive primacy. Primacy gives West Virginia the responsibility of overseeing and implementing a Class VI permitting program. Class VI wells are used to inject carbon dioxide into deep rock formations for permanent storage, known as carbon capture and sequestration (CCS), which is a tool used to reduce carbon dioxide emissions into the atmosphere. Point source emissions such as those from industrial facilities or power generation are common sources of carbon dioxide emissions and can be candidates for CCS. North Dakota, Wyoming, and Louisiana have already been granted Class VI primacy, and Alaska and Arizona currently have primacy applications pending with EPA. EPA has pledged to “fast-track” the agency’s review and approval of other Class VI well primacy applications.

The Class VI injection well permitting process generally starts with the applicant submitting an application, which undergoes a completeness review to ensure all required information is included. An applicant may receive a notice of deficiency or a request for additional information regarding their application. The application then undergoes a technical review to ensure the project does not pose a risk to drinking water. EPA indicates that it aims to complete its review of the permit application and issue Class VI permits “within approximately 24 months,” but states that have received Class VI permit primacy have completed the review process more quickly. Class VI well permit application requirements include site characterization, modeling to determine the impact of injection activities through the lifetime of the operation, well construction requirements, testing and monitoring throughout the life of the project, emergency and remedial response plans, operating requirements to prevent endangerment to human health or drinking water, and financial assurance mechanisms. If the application passes technical review, a draft permit is prepared and is made available for public comment period prior to the final permit being issued. Other requirements that apply to CCS projects in West Virginia are set forth in the West Virginia Underground Carbon Dioxide Sequestration and Storage Act, W.Va. Code § 22-11B-1, et seq.

CCS projects are eligible for the 45Q federal tax credit. The entity eligible to claim the tax credit is the owner of the capture equipment, and eligibility is determined based on the type of facility and its annual carbon capture thresholds. The eligibility thresholds are 1,000 metric tons of carbon dioxide for direct air capture facilities, 12,500 metric tons for industrial facilities, and 18,750 metric tons for electric generating units. Eligible projects that begin construction before January 1, 2033, can claim the tax credit for up to 12 years after being placed in service.

For more information on West Virginia’s Class VI injection well primacy, please contact any of the attorneys listed or your Babst Calland client relationship attorney.

PFAS: A New Four-Letter Word in Environmental Law? Updates from 2024 and Predictions for 2025

The Drill Bit Magazine

(by Sloane Wildman, Joseph Schaeffer and Jessica Deyoe)

The final year of the Biden administration saw several significant developments related to the regulation of per- and polyfluoroalkyl substances, more commonly known as PFAS. These developments included the U.S. Environmental Protection Agency’s designation of the two most common PFAS compounds as hazardous substances under federal cleanup laws and its limitation of six PFAS compounds under federal drinking water regulations, among others. The past year also saw a growing number of PFAS-related lawsuits, which are currently in various stages of litigation. What could happen to all these developments in 2025? Can the Trump administration change these rules and policies? What about the numerous PFAS related lawsuits that have been filed in the past year?  This update takes a look at some of the more significant PFAS-related developments from the past year and considers what might happen in 2025 and beyond.

What are PFAS and what were the prior administration’s PFAS priorities?

The term “PFAS” encompasses thousands of manmade chemicals.  PFAS compounds have been widely used for decades in various applications, including manufacturing water-, stain-, and heat-resistant consumer products, e.g., waterproof clothing and food packaging, and as ingredients in aqueous film forming foams (known as AFFF) used to extinguish certain kinds of chemical fires. There is research indicating that exposure to certain PFAS, which are prevalent and persistent in the environment, may cause various health-related impacts. In an effort to address the impacts related to PFAS, in 2021, the Biden administration published a “PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024” identifying a number of regulatory priorities that the administration planned to take during its four-year term. The Strategic Roadmap and annual progress reports are available here.

What were some of the most significant federal regulatory developments in 2024?

Two of EPA’s more significant regulatory actions in 2024 occurred almost back-to-back in April with its designation of two PFAS compounds as hazardous substances under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) and its rule imposing regulatory limits on six PFAS compounds under the Safe Drinking Water Act (SDWA).  We reported on both of these developments in updates available here and here.

Specifically, in April 2024, the EPA published a final rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), and their salts and structural isomers, as “hazardous substances” under CERCLA, available here. As we reported previously, EPA’s designation of PFOA and PFOS as CERCLA hazardous substances was unprecedented and controversial because it was the first time the Agency used its statutory authority under CERCLA to designate a hazardous substance.  Until that point, hazardous substances under CERCLA had only been defined by reference to other statutes (e.g., the Clean Water Act and the Resource Conservation and Recovery Act).  Among other things, the rule requires parties to report unpermitted releases of PFOA and/or PFOS at or above the applicable “reportable quantity” (one pound or more within a 24-hour period) to federal, state, and local authorities.  It also imposes certain obligations on federal agencies when selling and transferring federally owned real property. And most significantly, the rule provides the federal government with additional authority under CERCLA to address PFOA/PFOS contamination in the environment, allows private parties who conduct cleanups consistent with CERCLA’s National Contingency Plan to seek to recover PFAS cleanup costs from other potentially responsible parties (PRPs), and potentially affects closed sites with existing remedies.  At the same time EPA published the final CERCLA rule, it issued a policy memorandum, “PFAS Enforcement Discretion and Settlement Policy Under CERCLA” summarizing the Agency’s intent to use its discretion to not “pursue entities where equitable factors do not support seeking response actions or costs under CERCLA . . . .”  and generally focus on so-called “major PRPs” – parties who, in EPA’s view, “have played a significant role in releasing or exacerbating the spread of PFAS into the environment, such as those who have manufactured PFAS or used PFAS in the manufacturing process, and other industrial parties.” Some industries that would be protected under this Policy, including publicly owned treatment works and publicly owned/operated municipal solid waste landfills, expressed concern that the policy provides only discretionary rather than mandatory protection and that it does not prevent other PRPs from pursuing claims against them.

Also in April 2024, EPA published a National Primary Drinking Water Regulation establishing the first-ever national enforceable drinking water standards for six PFAS under the Safe Drinking Water Act (SDWA), available here. The rule sets enforceable Maximum Contaminant Levels (MCLs) and non-enforceable health-based Maximum Contaminant Level Goals (MCLGs) for PFOA and PFOS, and four additional PFAS compounds – perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid and its ammonium salt (HFPO-DA, commonly known as GenX chemicals), and perfluorohexane sulfonic acid (PFHxS).  EPA set MCLs (the maximum concentrations allowed in drinking water that can be delivered to the users of a public water system) at 4.0 parts per trillion (ppt) for PFOA and PFOS and 10 ppt for PFNA, PFHxS and HFPO-DA. In addition, EPA set MCLGs at 0 parts per ppt for PFOA and PFOS and at 10 ppt (same as the enforceable MCL) for PFNA, PFHxS and HFPO-DA. Under the rule, public water systems are given until 2027 to complete initial monitoring of each of the six PFAS, followed by ongoing compliance monitoring, and until 2029 to implement solutions to reduce PFAS where MCLs are exceeded. After those five years, public water systems that exceed one or more of the MCLs must take action to reduce PFAS levels and provide notice to the public of the violation.

In 2024, EPA proposed other rules related to PFAS that have not yet been finalized. For example, in February 2024, EPA published two proposed rules to address PFAS and other emerging contaminants under the authority of the Resource Conservation and Recovery Act (RCRA). First, EPA proposed to add nine PFAS (including their salts and structural isomers) to the list of “hazardous constituents” in Appendix VIII of 40 C.F.R. Part 261 that would need to be considered in facility assessments and, where necessary, considered in any further investigation and cleanup through the corrective action. Second, EPA also proposed to clarify, by regulation, that emerging contaminants – including PFAS – can be addressed under RCRA’s Corrective Action Program. For more information about the proposed RCRA rules, see our previous update, available here.

What were some of the major developments in PFAS litigation?

Regulatory developments directly influenced litigation developments. While the regulated community pushed back, plaintiffs’ attorneys relied on the new regulations to identify new targets for litigation and prove the elements of their cases. Overall, the prior year signaled three major developments in PFAS litigation.

First, a variety of stakeholders pushed back at the Biden administration’s efforts to regulate PFAS. In American Water Works Association v. U.S. Environmental Protection Agency, No. 24-1188 (D.C. Cir. 2024), a coalition of industry and major water utilities challenged the EPA’s regulation of PFAS under the SDWA. They argue that the Agency set MCLs for six PFAS beyond what are technologically and economically feasible and, further, adopted an unprecedented “hazard index” approach to regulating two additional PFAS. And in Chamber of Commerce v. U.S. Environmental Protection Agency, No. 24-1193 (D.C. Cir. 2024), industry challenged the EPA’s designation of two PFAS as hazardous substances under CERCLA. Emphasizing that the Agency has never before invoked its statutory authority to directly designate hazardous substances under CERCLA, they argue that the Agency conducted an improper “substantial danger” analysis and failed to properly consider the costs and consequences of its regulation. Barring deregulatory action from the Trump administration, both cases are expected to be decided in 2025 and will have major implications for whether and how the EPA may regulate PFAS going forward.

Second, PFAS manufacturers cemented a significant victory when the U.S. Court of Appeals for the Sixth Circuit declined to revisit its opinion in Hardwick v. 3M Co., where it ruled that the district court erred by allowing a “class comprising every person residing in the State of Ohio” to bring claims against ten manufacturers of PFAS for allegedly contaminating their blood with PFAS. Hardwick v. 3M Co., No. 22-3765, at *2 (6th Cir. Nov. 27, 2023). Holding that the lead plaintiff lacked standing, the Court noted that he “does not know what companies manufactured the particular chemicals in his blood stream; nor does he know, or indeed have much idea, whether those chemicals might someday make him sick; nor, as a result of those chemicals, does he have any sickness or symptoms now.” Id. at *1. Given the ubiquity of PFAS in the environment, and the numerous potential sources of exposure, Hardwick’s legacy may be to raise the bar for standing, causation, and harm in cases alleging PFAS exposure.

And, third, enterprising plaintiffs’ attorneys avoided the standing issues raised in Hardwick by bringing false advertising claims against manufacturers of products alleged to contain PFAS. Relying frequently on state consumer protection laws, the plaintiffs in these cases allege that product manufacturers misled consumers and delivered products that are worth less than they would have been if the presence of PFAS had been disclosed. In one such case filed in late 2024, for instance, the plaintiff alleges that Samsung Electronics failed to disclose the presence of PFAS in bands used with its smart watches, thereby “causing [plaintiff] to overpay for Products” and “enjoy[ing] an unfair competitive advantage, receiving millions of dollars from consumers in ill-gotten proceeds while putting the health and welfare of millions of consumers and their families at risk ….” Class Action Complaint at ¶ 8, Gonzalez v. Samsung Electronics Am., Inc., No. 2:24-cv-11234 (C.D. Cal. filed Dec. 31, 2024). Expect these lawsuits to proliferate as government reporting obligations and third-party investigations lead to the discovery of PFAS in products where it was previously unknown to have been used.

What can happen to these rules and cases under the new administration? 

On the regulatory front, the Trump administration is expected to deregulate at the federal level and take a less active approach to PFAS than the Biden administration. One major tool that can be used to rescind regulations is the Congressional Review Act (CRA). The first Trump administration liberally used the CRA to rescind regulations issued in the final days of the then-outgoing Obama administration. A “lookback” provision in the CRA allows a new Congress to review and overturn regulations issued during the final sixty legislative days of the prior session – for purposes of the incoming Trump administration, the “lookback” period of the CRA is August 2024. The Biden administration intentionally finalized many regulations, including the PFAS MCLs and designation of PFOA and PFOS as hazardous substances under CERCLA, prior to August 2024 to stay out of reach of the CRA.

Though these PFAS-related regulations are out of reach of the CRA “lookback period” for rescinding regulations, there are other tools for doing so. EPA can amend or overturn a rule through ordinary notice and comment rulemaking under the Administrative Procedure Act. The notice-and-comment rulemaking requires that EPA develop a legal record justifying the proposed change and undergo a lengthy public notice process on the proposed regulatory/deregulatory action. Although it would be time-consuming, the EPA can use this option to amend or overturn the designation of PFOA and PFOS as hazardous substances under CERCLA as well as the PFAS MCLs. Of course, the future of these rules could also be determined by the ongoing litigation discussed above.

Another tool that already has been used by the new Trump administration to direct regulatory action in numerous substantive areas is the issuance of executive orders (EOs).  On the first day of his second term, President Trump signed several EOs affecting environmental policy established by the Biden administration, including an EO entitled “Initial Rescissions of Harmful Executive Orders and Actions,” which expressly rescinds a number of Biden administration EOs, including those addressing climate change and environmental justice. Proposed rules and guidance documents, such as the RCRA proposal discussed above, are now subject to President Trump’s EO entitled “Regulatory Freeze Pending Review” which requires that (1) no federal agency propose or issue any rule without review and approval of an agency head appointed or designated by President Trump, and (2) any rule submitted to the Federal Register that is not yet published must be withdrawn pending review. It is also possible that EOs will be issued to withdraw specific guidance documents inconsistent with the new administration’s goals and policies. For example, the EPA’s PFAS Strategic Roadmap could be shelved or rescinded.

These anticipated Trump administration regulatory actions could impact the trajectory of litigation challenging the Safe Drinking Water Act and CERCLA rules, especially if the EPA signals that it intends to withdraw or modify those actions. The private civil litigation, however, is expected to continue unabated.

As the new administration is expected to significantly alter the federal regulatory efforts to address PFAS across multiple program areas, potentially impacting both existing and yet-to-be-filed litigation, Babst Calland attorneys will track these developments and are available to assist you with these matters.  For more information on the federal regulatory and litigation developments discussed in this update or related matters, please contact Sloane Wildman at (202) 853-3457 or swildman@babstcalland.com, Joseph Schaeffer at (412) 394-5499 or jschaeffer@babstcalland.com, Jessica Deyoe at (202) 853-3489 or jdeyoe@babstcalland.com or any of our other environmental attorneys.  For additional resources and more information on other PFAS developments, please visit Babst Calland’s PFAS Perspectives page, here.

BOI is Back: Corporate Transparency Act Reporting Requirements Reinstated

Pittsburgh Technology Council

(by Chris Farmakis, Susanna Bagdasarova, Kate Cooper, and Dane Fennell)

Amid a series of ongoing legal battles, the beneficial ownership information (BOI) reporting requirements under the Corporate Transparency Act (CTA) have been reinstated. In light of the U.S. Supreme Court’s January 23, 2025 order in McHenry v. Texas Top Cop Shop Inc., which granted the government’s request for a stay of a nationwide injunction in a separate case challenging the BOI reporting requirements, on February 17, 2025, the U.S. District Court for the Eastern District of Texas granted the government’s motion to stay the preliminary injunction issued in Smith v. United States Department of the Treasury. As a result, U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) is no longer prohibited from enforcing the CTA’s BOI reporting requirements, and reporting companies’ compliance obligations have resumed. This ruling is pending an appeal to the U.S. Court of Appeals for the Fifth Circuit.

FinCEN has announced a 30-day deadline extension for reporting companies. The new deadline for the majority of reporting companies to file an initial, updated, and/or corrected BOI report is March 21, 2025. FinCEN has also indicated that it will assess the need for further modifications to the reporting deadlines during this 30-day extension period, with a focus on lower-risk entities.

In parallel, BOI reporting requirements are receiving legislative attention. The Protect Small Business from Excessive Paperwork Act of 2025 unanimously passed the U.S. House of Representatives and a companion bill is awaiting action in the Senate. If enacted, reporting companies formed before January 1, 2025 will have until January 1, 2026 to comply with the BOI reporting requirements.

Reporting companies must ensure they are prepared to meet the March 21, 2025 filing deadline. While further adjustments may be forthcoming, companies are advised to remain proactive in their compliance efforts.

Babst Calland will continue to monitor regulatory and judicial updates. Please reach out to fincenassist@babstcalland.com or your Babst Calland contact if you would like Babst Calland to assist you with your company’s compliance obligations. Babst Calland will only provide advice related to BOI reporting compliance when explicitly requested to do so. We look forward to servicing your needs on this developing area of the law.

To read the full article, click here.

BOI is Back: Corporate Transparency Act Reporting Requirements Reinstated

Firm Alert

(by Chris Farmakis, Susanna Bagdasarova, Kate Cooper, and Dane Fennell)

Amid a series of ongoing legal battles, the beneficial ownership information (BOI) reporting requirements under the Corporate Transparency Act (CTA) have been reinstated. In light of the U.S. Supreme Court’s January 23, 2025 order in McHenry v. Texas Top Cop Shop Inc., which granted the government’s request for a stay of a nationwide injunction in a separate case challenging the BOI reporting requirements, on February 17, 2025, the U.S. District Court for the Eastern District of Texas granted the government’s motion to stay the preliminary injunction issued in Smith v. United States Department of the Treasury. As a result, U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) is no longer prohibited from enforcing the CTA’s BOI reporting requirements, and reporting companies’ compliance obligations have resumed. This ruling is pending an appeal to the U.S. Court of Appeals for the Fifth Circuit.

FinCEN has announced a 30-day deadline extension for reporting companies. The new deadline for the majority of reporting companies to file an initial, updated, and/or corrected BOI report is March 21, 2025. FinCEN has also indicated that it will assess the need for further modifications to the reporting deadlines during this 30-day extension period, with a focus on lower-risk entities.

In parallel, BOI reporting requirements are receiving legislative attention. The Protect Small Business from Excessive Paperwork Act of 2025 unanimously passed the U.S. House of Representatives and a companion bill is awaiting action in the Senate. If enacted, reporting companies formed before January 1, 2025 will have until January 1, 2026 to comply with the BOI reporting requirements.

Reporting companies must ensure they are prepared to meet the March 21, 2025 filing deadline. While further adjustments may be forthcoming, companies are advised to remain proactive in their compliance efforts.

Babst Calland will continue to monitor regulatory and judicial updates. Please reach out to fincenassist@babstcalland.com or your Babst Calland contact if you would like Babst Calland to assist you with your company’s compliance obligations. Babst Calland will only provide advice related to BOI reporting compliance when explicitly requested to do so. We look forward to servicing your needs on this developing area of the law.