Articles, Alerts & Perspectives

Pittsburgh, PA

Pretrial Practice & Discovery

American Bar Association Litigation Section

(by Lucy Wiesner)

Under the Federal Rules of Civil Procedure, parties may obtain discovery regarding any nonprivileged matter that is relevant to either party’s claim or defense and proportionate to the needs of the case. While irrelevant information falls outside the scope of the express language of the rule, courts are generally reluctant to allow parties to redact irrelevant information contained within an otherwise responsive document.

A recent decision from the Southern District of New York provides helpful guidance on when relevancy redactions may be appropriate and how parties can avoid motions practice to resolve disputes over their scope.

The case Kaiser Aluminum Warrick, LLC v. U.S. Magnesium, LLC, No. 22-cv-3105 (JGK) (KHP) (S.D.N.Y. Feb. 27, 2023) concerned the defendant’s failure to fulfill its contract to supply magnesium to the plaintiff. The defendant relied on a force majeure defense, citing unexpected equipment failures. During discovery, the defendant produced several otherwise responsive documents with relevance redactions, to which the plaintiff objected. The plaintiff moved the court to require the defendant to produce the challenged documents in full “arguing that redactions for relevance are disfavored when there is a protective order in place, as one is here.” Id. at *1. The defendant responded that the redacted information was “irrelevant and competitively sensitive, and therefore, it should not be required to be produced in unredacted form.” Id.

The court held that where relevancy redactions “are consistent with Rule 1 and Rule 26 and do not deprive the other party of context, they may be appropriate” but advised that “a party should request permission to make such redactions in advance of production.” Id.  …

Pittsburgh, PA and Washington, DC

PIOGA Press

(by Jean Mosites and Gina Buchman)

On May 30, 2024, Vermont Governor Philip Scott allowed S.259, An act relating to climate change cost recovery, to become law without his signature.  S. 259, entitled the Climate Superfund Act, will require the development of claims to shift the cost of alleged climate-related impacts in Vermont onto the companies that produced fossil fuels responsible for greenhouse gas (GHG) emissions.

This bill is the first of its kind to become law in the United States, and similar legislation is pending in Massachusetts, New York, and Maryland.  Borrowing some concepts from the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), or Superfund, which imposes strict liability for cleanup of contaminated sites on potentially responsible parties, this Act seeks to assign financial liability for climate-related impacts on the companies that extracted and refined petroleum products and other fossil fuels.  Like CERCLA, the Act imposes retroactive liability on entities having conducted lawful business activities in the past.

Vermont’s Act establishes a Climate Superfund Cost Recovery Program to be administered by the Climate Action Office of the Agency of Natural Resources.  The Vermont Treasurer will be required to assess the cost of GHG emissions to the state and its residents during the period January 1, 1995 through December 31, 2024.  The Agency of Natural Resources will apportion liability and make cost recovery demands to “Responsible Parties,” those entities engaged in the trade or business of extracting fossil fuel or refining crude oil responsible for more than one billion metric tons of covered greenhouse gas emissions during the covered period. …

Pittsburgh, PA

The Legal Intelligencer

(by Max Junker and Anna Jewart)

Noted wordsmith Justice Michael Musmanno articulated the rationale for the “deemed approval” concept in Pennsylvania land use law noting: “Without this kind of coercive determination, a Board could effectively prevent the erection of needed structures through the simple process of luxurious lolling while spiders of inattention spin webs of indifference over pending public problems.”  To avoid luxurious lolling by local governments, the Legislature included mandatory deadlines in the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq. (“MPC”), which governs municipal regulation of zoning, subdivision and land development within the Commonwealth.  The MPC sets forth strict requirements for when and how municipalities make decisions on land use applications, in addition to how they communicate those decisions to the applicant.  A failure to comply with these requirements may result in a deemed approval of the underlying application.

Within days of each other, the Commonwealth Court issued two reported opinions which affirmed the deemed approvals of land use applications. CRG Services Management, LLC v. Lowhill Township, No. 1091 C.D. 2023 (Pa. Cmwlth. June 3, 2024) (deemed approval of a land development plan for a warehouse because the township’s denial letter was inadequate) and Folk v. Mifflin Township Zoning Hearing Board, 969 C.D. 2023 (Pa. Cmwlth. June 5, 2024) (deemed approval for a variance to operate a wedding venue on a farm because the zoning hearing board did not commence the public hearing within 60 days of application’s submission).  In light of these cases, this article provides a brief overview of key MPC provisions which could result in a deemed approval of a land use application. …

Pittsburgh, PA

Pittsburgh Business Times

(by Jenn Malik featuring Joel Bibby)

There’s no magic pill for weight loss – but many think we’re getting closer to having one with the widespread use of diabetes medications, also known as GLP-1s (glucagon-like peptide analogs). And employers with sponsored health plans are seeing a significant impact on their plan budgets from the increased use of these drugs.

“It used to be that the majority of (a company’s) prescription spend on their health benefits was really in specialty drugs,” said Jenn Malik, an attorney in the employment and labor and public sector groups at the law firm Babst Calland. “But now you’re seeing a shift to these GLP-1s that are really topping the charts.”

Primarily injected, the drug compounds, better known as Ozempic and Mounjaro approved for treating type 2 diabetes, and their approved-for-weight-loss lifestyle counterparts, such as brands commonly known as Wegovy and Zepbound, are made of the same active ingredient as the diabetes version, explained Joel Bibby, a licensed pharmacist and managing director of clinical services for Integrity Pharmaceutical Advisors. They work by affecting an enzyme in your gut that can help you feel full and help your body process blood sugars. In addition to treating diabetes, they can help with issues associated with diabetes, like being overweight, which affect many different body systems.

“Indications for use of these drugs are expanding. In March, they were approved to reduce the risk of certain cardiovascular events, like heart attack and stroke. There are also rumors of Wegovy’s pending approval for help with other conditions,” Malik said.

“The broadening use of GLP-1 medications is also driving employers to rethink their plan designs. …

Pittsburgh, PA and Washington, DC

The Authority

(by Michael Korns and Amanda Brosy)

Municipal authorities and other public entities in Pennsylvania have long been familiar with the weight and burden of DEP and EPA mandates and regulations.  Whether it involves issues with stormwater infiltration, erosion and sediment control, or any number of issues related to water treatment, all too often authorities must correct issues that they did not cause.  Given that history, authorities should brace themselves, because new regulations will put them in the crosshairs again.

PFAS – A pollutant that means forever.

The new issue facing authorities relates to a large group of man-made chemicals known as per- and polyfluoroalkyl substances, or “PFAS” for short.  PFAS are resistant to heat, oils, stains, and water, and for that reason, PFAS have been incorporated into a wide variety of consumer products and industrial processes since the 1940s.  They are ubiquitous in the environment and are known as “forever chemicals” because they do not readily break down in nature.  Ongoing research shows a variety of potential health risks related to PFAS exposures.

Pennsylvania has adopted PFAS standards related to drinking water and environmental cleanup, and  EPA, which is working to address PFAS pollution on multiple regulatory fronts, recently finalized the first-ever national drinking water standard related to PFAS. In December 2023, DEP also updated its NPDES Individual Industrial Wastewater permit application to include PFAS sampling. Applications going forward are required to include sampling for four PFAS: PFOA, PFOS, PFBS, and HFPO-DA (commonly referred to as GenX) as part of Pollutant Group 1 sampling.  Because sampling is required under Pollutant Group 1, all industrial categories are subject to the sampling requirements.

The heart of the issue for authorities is this: the elimination of PFAS in drinking water is a regulatory priority for both EPA and DEP.  …

Charleston, WV

The Wildcatter

(by Nikolas Tysiak)

A few cases to report on this month.

Griffin v. Toland, 2024 WL 2269941 (W. Va. S. Ct. May 20, 2024). In a memorandum decision (i.e. – without oral arguments), the West Virginia Supreme Court sought to interpret intentions of the parties to a 1976 deed containing oil and gas reservation language. Hazel L. White acquired all the surface and ½ the oil and gas under a tract of 82 acres during her lifetime, one-half the oil and gas having been properly and effectively reserved by a predecessor in title pursuant to a 1943 deed. By deed dated June 29, 1976, Hazel White conveyed the 82 acres to Timmie and Vickie McMillan, with an exception of ½ the oil and gas. The exception language in the June 29, 1976 was reportedly identical to the reservation language used by Hazel White’s predecessor in title to retain the “other” ½ of the oil and gas via the 1943 deed. The 82 acres was purportedly conveyed multiple times following the June 29, 1976 deed, all containing language nearly identical to both the 1943 deed and the June 29, 1976 deed. Griffin, as successor to Hazel White, filed a declaratory judgment action claiming rightful ownership of the ½ oil and gas interest purportedly reserved under the June 29, 1976 deed, as against the current surface owners (Toland). The trial court found in favor of Toland, stating that the June 29, 1976 deed was ambiguous as to Hazel White’s intent – the language does not indicate whether Hazel indicated to retain the “remaining” one half of the oil and gas associated with the 82 acres, ½ of the ½ interest, or none of the oil and gas. …

Pittsburgh, PA and Washington, DC

FNREL Water Law Newsletter

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

On March 9, 2024, the Pennsylvania Department of Environmental Protection (PADEP) announced the availability of its draft National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges of Stormwater Associated with Construction Activities (draft 2024 General Permit), which would apply to eligible projects proposing earth disturbance greater than or equal to one acre. See 54 Pa. Bull. 1263 (Mar. 9, 2024). PADEP accepted comments on the draft through April 8, 2024. PADEP’s draft 2024 General Permit includes significant changes compared to the PAG-02 General Permit currently in effect, set to expire on December 7, 2024 (2019 General Permit). To supplement these changes, PADEP is expected to update the Erosion and Sediment Module 1 and Post-Construction Stormwater Management (PCSM) Module 2 to be consistent with the draft 2024 General Permit upon reissuance.

The 2019 General Permit requires that proof of the recording of an instrument for post-construction stormwater management (PCSM) best management practices (BMPs), now referred to as stormwater control measures (SCMs), be submitted to PADEP or the County Conservation District (CCD) with the Notice of Termination (NOT) or a Transfer Application. The draft 2024 General Permit would require submission of the full recording and proof of the recording to PADEP before a pre-construction meeting is scheduled, as well as upon the submission of the NOT to ensure compliance. The draft 2024 General Permit would also require the use of a standard form to document the completion of each structural PCSM SCM, which must be signed by a licensed professional and submitted to PADEP or CCD within 30 days of completion of each SCM. …

Pittsburgh, PA and Washington, DC

FNREL Water Law Newsletter

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

In February 2024, the Pennsylvania Department of Environmental Protection (PADEP) updated its National Pollutant Discharge Elimination System (NPDES) permit application process for Major Sewage Facilities and Individual Industrial Wastewater permits to include per- and polyfluoroalkyl substances (PFAS) sampling. PFAS have historically been used to make products water, stain, and heat resistant and have been a key ingredient in some aqueous film forming foams (AFFF) used to extinguish flammable liquid fires, most commonly found at airports or on military bases. PFAS are known as “forever chemicals” because they do not break down naturally in the environment. Due to these properties and their ubiquitous nature, PFAS have been found in various environmental media, such as groundwater (including drinking water), plants, animals, and humans.

Major Sewage Facilities and Individual Wastewater permit applicants will now need to sample for four PFAS compounds as part of Pollutant Group 1 testing. The compounds required to be tested include perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), perfluorobutanesulfonic acid (PFBS), and hexafluoropropylene oxide dimer acid (HFPO-DA, commonly known as GenX).

Because PFAS has been added to Pollutant Group 1, all industrial categories are subject to the sampling requirements. Ongoing monitoring may also be required. Applicants with non-detect results or results at or below the Target Quantification Limits (QLs) will be required to monitor annually. Applicants with detections or non-detects above the QL will be required to sample quarterly. The QLs are 4.0 parts per trillion (ppt) for PFOA, 3.7 ppt for PFOS, 3.5 ppt for PFBS, and 6.4 ppt for HFPO-DA.

Ongoing monitoring may be discontinued if there are four consecutive monitoring periods with non-detect results at or below the QLs. …

Pittsburgh, PA and Washington, DC

FNREL Water Law Newsletter

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

The Pennsylvania Department of Environment Protection’s (PADEP) Water Resources Advisory Committee (WRAC) met on May 16, 2024, to discuss PADEP’s proposed rulemaking regarding notification requirements for unauthorized discharges to waters of the commonwealth and the draft final Triennial Review of Water Quality Standards (WQSs). Section 91.33 of Title 25 of the Pennsylvania Code requires immediate notification to PADEP if, because of an accident or other activity or incident, a toxic substance or other substance which would endanger downstream users or otherwise result in pollution reaching the waters of the commonwealth, is discharged into waters of the state. The characteristics of unauthorized discharges, such as spills and leaks, are not known prior to the discharge, and there are many site-specific factors affecting the risk of unauthorized discharge. According to PADEP, the purpose of the proposed regulation is to make the notification requirements for unauthorized discharges as straightforward as possible. The requirements do not expand notification obligations but attempt to clarify which unauthorized discharges need to be reported. In PADEP’s presentation to the WRAC, PADEP provided examples of unauthorized discharges that do not need to be reported, discharges that may need to be reported, and discharges that must be reported. For example, releases of materials within secondary containment when there is no possibility of the substance reaching waters of the commonwealth do not need to be reported, spills of non-liquid materials into waters of the commonwealth may not need to be reported, depending on the material, and sanitary sewer overflows that reach waters of the commonwealth must be reported.

WRAC also reviewed the draft final version of the Triennial Review of WQSs regulation. …

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

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

On October 13, 2023, the U.S. Department of Energy (DOE) announced that it had selected seven Regional Clean Hydrogen Hubs (H2Hubs) to negotiate awards for $7 billion in funding allocated under the Biden administration’s Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, 135 Stat. 429 (2021). According to DOE, the H2Hubs will “accelerate the commercial-scale deployment of low-cost, clean hydrogen—a valuable energy product that can be produced with zero or near-zero carbon emissions . . . .” Press Release, DOE, “Biden-Harris Administration Announces $7 Billion For America’s First Clean Hydrogen Hubs, Driving Clean Manufacturing and Delivering New Economic Opportunities Nationwide” (Oct. 13, 2023). Two of the H2Hubs are located in Pennsylvania and surrounding states, and other Hub projects are located in California; Texas; Minnesota, North Dakota, and South Dakota; Illinois, Indiana, and Michigan; and Washington, Oregon, and Montana.

The Mid-Atlantic Hydrogen Hub (Selectee: Mid-Atlantic Clean Hydrogen Hub (MACH2)) is located in Pennsylvania, Delaware, and New Jersey. Per DOE, it will repurpose historical oil infrastructure and use existing rights-of-way “to develop renewable hydrogen production facilities from renewables and nuclear electricity using both established and innovative electrolyzer technologies” to reduce energy costs and carbon emissions. Office of Clean Energy Demonstrations, DOE, “Regional Clean Hydrogen Hubs Selections for Award Negotiations,” available here. This Hub anticipates supporting apprenticeship programs, certifications, and other employment support, and creating more than 20,000 jobs (including more than 6,000 permanent jobs). This Hub’s federal cost share is up to $750 million. …

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

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

On November 1, 2023, Pennsylvania Governor Josh Shapiro announced the release of “PAyback,” an online tool for Pennsylvania permit, license, and certification applicants. See Press Release, Gov’r Josh Shapiro, “Governor Shapiro Launches First-in-the-Nation Online Money-Back Guarantee System to Bring Increased Accountability & Transparency to Commonwealth Permitting, Licensing, and Certification Processes” (Nov. 1, 2023). Specifically, PAyback allows an applicant to confirm the processing time of its application and request a refund if the application is not processed within the appropriate timeline. Refund eligibility applies to approximately 70% of applications, excluding those that, e.g., do not have an application fee. The refund policy is not retroactive and only applies to applications completed on or after November 1, 2023.

The PAyback tool is one component, and a result of Shapiro’s stated goal of increasing transparency, efficiency, and certainty for Pennsylvanians subject to these processes and requirements. Its development followed Shapiro’s issuance of Executive Order 2023-07, “Building Efficiency in the Commonwealth’s Permitting, Licensing, and Certification Processes” (Jan. 31, 2023), which directed each applicable Executive Agency to “compile a catalog of the types of permits, licenses, or certifications it issues and submit that catalog to the Governor’s Office” within 90 days. Id. Relevant Executive Agencies were tasked with compiling the following information for each permit, license, or certification:

• type, term, and basis (e.g., statutory, regulatory, or other);
• method for receiving applications and when the method was last updated;

…

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

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

On October 18, 2023, Pennsylvania Governor Josh Shapiro’s office announced that the Pennsylvania Department of Environmental Protection (PADEP) and the Shapiro administration had capped and plugged 100 orphaned and abandoned wells since Shapiro took office in January 2023, which surpasses the total number of wells plugged in the previous six years combined. See Press Release, Gov’r Josh Shapiro, “Shapiro Administration Has Plugged 100 Orphaned & Abandoned Wells in Just 10 Months, Surpassing Total Over Previous 6 Years Combined” (Oct. 18, 2023).

In addition to state resources, significant funding to address these wells comes from allocations to Pennsylvania from the federal Infrastructure Investment and Jobs Act (IIJA), Pub. L. No. 117-58, 135 Stat. 429 (2021). Pennsylvania received initial IIJA grant funding totaling $25 million and is eligible for an additional $300+ million in the coming years. See Press Release, U.S. Dep’t of the Interior, “Biden Administration Announces $1.15 Billion for States to Create Jobs Cleaning Up Orphaned Oil and Gas Wells” (Jan. 31, 2022, updated June 5, 2023). According to the Shapiro administration, the IIJA funds are not only being used to cap and plug wells—PADEP has awarded contracts for 224 wells to date—but are also directed toward identifying and inventorying wells, as well as taking enforcement actions against applicable operators.

Approximately 45% of the wells are in environmental justice areas, which is consistent with the Biden administration’s Justice40 Initiative. The goal of the Justice40 Initiative is to direct 40% of the benefits of certain federal investments to disadvantaged communities across one or more of seven areas: climate change, clean energy and energy efficiency, clean transit, affordable and sustainable housing, training and workforce development, remediation and reduction of legacy pollution, and the development of critical clean water and wastewater infrastructure. …

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

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

On November 2, 2023, Pennsylvania Governor Josh Shapiro and CNX Resources Corp. (CNX) announced a voluntary agreement between Shapiro’s administration and CNX, under which CNX agreed to take certain actions regarding its unconventional oil and gas operations in Pennsylvania. See Press Release, Gov’r Josh Shapiro, “Shapiro Administration and Leading Natural Gas Company CNX Resources Announce First-of-Its-Kind Collaboration on Environmental Monitoring and Chemical Disclosures” (Nov. 2, 2023); see also Statement of Mutual Interests (Nov. 2, 2023). Specifically, CNX agreed to the following:

• “intensive” air and water quality monitoring to assess environmental impacts—data and facts that the Shapiro administration will use (with other applicable facts and data) “to inform the necessity of any additional setbacks or other future policy changes”;
• expand its no-drill zones from 500 feet to 600 feet for all sites and to 2,500 feet for sensitive sites, e.g., schools and hospitals while it is collecting data;
• publicly disclose all chemicals intended for use in drilling and hydraulic fracturing prior to use on-site;
• support regulation of gathering lines to inspect for corrosion;
• support additional safety measures applicable to transporting waste from unconventional well sites; and
• provide open-sourced, real-time emissions information to stakeholders and interested parties.

CNX also agreed not to hire Pennsylvania Department of Environmental Protection (PADEP) employees from regional offices covering CNX operations until two years after such employees leave PADEP. The actions address several recommendations from a 2020 Grand Jury Report on the unconventional oil and gas industry.  …