Articles, Alerts & Perspectives

Washington, DC

Environmental Alert 

(by Sloane Wildman and Jordan Brown)

On May 18, 2026, the U.S. Environmental Protection Agency announced two proposed rules that would significantly reshape the federal regulatory framework for per- and polyfluoroalkyl substances (PFAS) in drinking water. The first proposed rule, the PFOA and PFAS Compliance Extension Rule, would uphold enforceable drinking water limits for the two most common PFAS compounds (perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS)), but would allow water systems to request an extension of the compliance deadline an additional two years, to 2031, to comply with the enforceable limits. The second proposed rule, the PFAS Rescission Rule, would rescind federal drinking water regulations for the other PFAS compounds currently subject to drinking water standards (perfluorohexane sulfonic acid (PFHxS), perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid (HFPO-DA, or GenX), and mixtures of these three PFAS, plus perfluorobutane sulfonic acid (PFBS)), citing the need to correct prior procedural deficiencies under the Safe Drinking Water Act.

The proposed rules build on the regulatory framework first established in April 2024, by the prior administration, which set enforceable limits for six PFAS compounds. As we have reported previously, in April 2025, EPA announced its strategy to address PFAS contamination. Shortly thereafter, in May 2025, EPA announced its plan to scale back and extend compliance deadlines for federal PFAS drinking water regulations, stating that it intended to retain standards for PFOA and PFOS, and to reconsider regulations for the other four compounds: PFHxS, PFNA, HFPO-DA, and PFBS.  

For affected parties, these developments mean that compliance with PFOA and PFOS standards remains mandatory, but water systems may have until 2031 to meet the enforceable limits if they request an extension. …

Washington, DC

Firm Alert

(by Melanie Lampton)

On May 11, 2026, the U.S. Department of Transportation (DOT) published a final rule amending its drug and alcohol procedures under 49 CFR Part 40.  DOT addresses implementation issues associated with oral fluid drug testing and updates terminology to align with Executive Order (E.O.) 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.  The rule becomes effective June 10, 2026.

Background:

On May 2, 2023, DOT amended Part 40 to add oral fluid testing as an additional drug testing method and, in certain situations, to require a directly observed collection to be an oral fluid test as opposed to a urine test.  However, because there are currently no U.S. Department of Health and Human Services (HHS)-certified laboratories available to perform oral fluid testing, employers cannot yet utilize this testing method under Part 40.

To correct this practical impossibility, DOT published a notice of proposed rulemaking (NPRM) on December 9, 2024, proposing to amend Part 40 for an interim period to permit directly observed urine collections in certain situations where oral fluid collection is not yet available.  Additionally, on October 1, 2025, DOT published a supplemental NPRM proposing to replace the word “gender” with “sex” in Part 40 to be consistent with E.O. 14168.

Key Highlights of the Final Rule:

• Directly Observed Urine Collections:  DOT amends Part 40 to allow employers to use directly observed urine collections in situations where oral fluid testing would otherwise be required, so long as oral fluid testing is not available.  

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Charleston, WV

Environmental Alert

(by Christopher (Kip) Power, Robert Stonestreet and Joseph (Jed) Meadows)

Several organizations have filed a lawsuit seeking to invalidate regulations intended to restore state agencies as the primary regulators of most coal mining operations. On April 20, 2026, Citizens Coal Council, Appalachian Voices, and the Sierra Club (Plaintiffs) filed a civil action against Interior Secretary Doug Burgum, challenging the Office of Surface Mining Reclamation and Enforcement (OSM)’s February 19, 2026, revisions to its regulations governing oversight of state mine regulatory programs under the federal Surface Mining Control and Reclamation Act of 1977 (SMCRA). Citizens Coal Council, et al. v. Burgum, 1:26-cv-01348-RBW (D.C. D. Ct.). Asserting that the changes made by the 2026 revisions to those regulations (the “SMCRA Oversight Rules”; generally, 30 C.F.R. Parts 730 – 746) are “arbitrary, capricious, and otherwise inconsistent with law,” the Complaint largely seeks a return to the 2024 version that was put into effect under the Biden administration.

In their Complaint, the Plaintiffs allege that the 2026 changes “unlawfully modified important provisions of the [prior SMRCA Oversight Rules].” Complaint, at ¶ 3. Notably, the Plaintiffs previously challenged the 2020 version of the Oversight Rules (promulgated during President Trump’s first term) for many of the same reasons, but ended that challenge when the Biden administration promulgated the 2024 version of the same rules.

OSM’s 2026 revisions to its SMCRA Oversight Rules were indeed intended to return them largely to their 2020 form (the “2020 Rule”), “maintain[ing] SMCRA’s deference to primary states and limiting the scope of [Ten Day Notice] issuance by OSM.”  (See Environmental Alert: “OSM Finalizes Oversight Rules to Closely Resemble 2020 Version”). …

Pittsburgh, PA and Washington, DC

Energy and Natural Resources Alert

(by Sean McGovern and Jordan Brown)

The Pennsylvania Department of Environmental Protection has issued two new Standard Operating Procedures (SOPs) for civil penalty assessments related to unconventional and conventional oil and gas wells and a new SOP for identifying, tracking, and resolving oil and gas violations:

• Standard Operating Procedure for Calculating Civil Penalty Assessments for Conventional Oil and Gas Operations (February 2026)
• Standard Operating Procedure for Calculating Civil Penalty Assessments for Unconventional Oil and Gas Operations (February 2026)
• Standard Operating Procedure for Identifying, Tracking, and Resolving Oil and Gas Violations (February 2026)

These SOPs supersede the Civil Penalty Assessments in the Oil and Gas Management Program (Doc. ID No. 550-4180-001, issued January 12, 2002) and the Standards and Guidelines for Identifying, Tracking, and Resolving Oil and Gas Violations (Doc ID. No. 820-4000-001, issued January 17, 2015) Technical Guidance Documents (TGDs), respectively.

The Department’s transition from TGDs to SOPs represents a significant procedural shift. TGDs undergo public comment periods and structured review processes with opportunity for the regulated community to participate, whereas SOPs are internal agency documents that the Department can revise at its discretion without public input. This transition provides the Department with greater administrative flexibility but reduces opportunities for stakeholder engagement.

Conventional and Unconventional Civil Penalty SOPs

Changes common to both civil penalty SOPs (Conventional and Unconventional) include, but are not limited to the following:

1. 1. Statutorily Based Penalty Ranges
      The SOPs now clarify the full civil penalty ranges authorized under the 2012 Oil and Gas Act.

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Pittsburgh, PA

Environmental Alert

(by Lisa Bruderly and Mackenzie Moyer)

On April 30, 2026, the Pennsylvania Supreme Court released a long-awaited opinion about the ability of a municipality to assess charges to manage stormwater runoff. Borough of West Chester v. Pennsylvania State System of Higher Education, No. 9 MAP 2023. In the opinion, the Pennsylvania Supreme Court affirmed the unanimous 2023 Commonwealth Court opinion holding that stormwater management charges are taxes, not fees, and, thus, tax-exempt entities are immune from paying such charges. The Commonwealth Court based its decision on findings that the Borough did not enter into a voluntary, contractual relationship with the University, and the University did not receive discrete benefits through payment of the stormwater charge.

As background, the Home Rule Municipality of the Borough of West Chester owns and operates a small municipal separate storm sewer system (MS4) as part of its stormwater management system. In 2016, the Borough adopted an ordinance imposing a “stream protection fee,” otherwise known as the stormwater charge, upon owners of developed property who the Borough claimed benefitted from the stormwater management system to manage and control their stormwater entering the system. The amount of the stormwater charge is calculated based on the amount of impervious surface on the property.

Accordingly, the Borough sent West Chester University invoices for payment of the charge, in the amount of approximately $132,000 per year. However, the University did not pay the invoices, arguing that the charge was a tax, and, thus, the University was exempt from payment as an entity of the Commonwealth.

In affirming the Commonwealth Court, the Court identified a two-step test for distinguishing a fee for a service from a local tax, in which the Court first examined whether the municipality is performing the service in a “quasiprivate or public capacity.” If acting in a quasiprivate capacity, the Court would then determine whether “the associated charge is measured by the service rendered.” Looking at documents, including the relevant ordinance, the Court concluded that the Borough provides stormwater management in the Borough’s public capacity. …

Pittsburgh, PA

Environmental Legal Perspective

(by Tim Bytner)

The phrase “Comprehensive Environmental Response, Compensation and Liability Act,” or “CERCLA” for short, is something that pricks the ears of environmental managers and counsel, but usually not in a good way.  Certainly, the mere mention of an EPA104(e) information request is something that can cause the hands to get clammy even for the most seasoned environmental managers and in-house counsel. The concerns are not unfounded. Being named as a potentially responsible party (“PRP”) for a contaminated site, whether it be as an owner, operator or an arranger, usually is the start of a process that can take a few years to decades to complete.

I consider myself very fortunate that my career in the environmental industry has touched on just about every stage of a contaminated site. Having been an environmental consultant prior to (and during) law school, there was a time when I was the person collecting samples and preparing various plans and technical reports. Now having practiced environmental law for more than 18 years, I’m the person directing responses to information requests and negotiating with agency counsel and other PRPs on remedial investigations, cost sharing, feasibility studies, etc. Over the years, I’ve had multiple conversations with clients that began with “I just received this letter…” or “…have you seen the news today?”

It can be quite difficult to see an end to the CERCLA process, but endings can and do happen. To date, 460 sites have been removed from the National Priority List (“NPL”).[1] Some of these sites were removed from the NPL because of what I would generally term as “administrative” reasons, meaning that the site is still undergoing some form of remediation, it’s just no longer appropriate to maintain on the NPL. …

Washington, DC and Pittsburgh, PA

Environmental Alert

(by Ben Clapp, Gary Steinbauer and Mackenzie Moyer)

On April 13, 2026, the U.S. Environmental Protection Agency (EPA) published a Proposed Rule in the Federal Register that would amend federal regulations related to the disposal and beneficial use of coal combustion residuals (CCR). If finalized as proposed, the amendments would provide increased regulatory flexibility, expand pathways for owners and operators of CCR disposal units to achieve compliance with federal CCR regulations, rescind or reduce the scope of regulations governing certain CCR disposal and storage areas, and reduce restrictions on the beneficial use of CCR. In addition, EPA announced that it is planning to reopen the public comment period for the proposed Federal CCR Permit Program rule, which was originally published on February 20, 2020.

Background

The federal regulation of CCR dates back to 2015, when EPA finalized the first national minimum criteria for the beneficial use and disposal of CCR as a solid waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA). As reported in detail in an earlier Babst Calland Environmental Alert, in 2024, EPA supplemented the 2015 regulations by finalizing  what is known as the “Legacy CCR Rule,” which expanded the scope of the federal CCR rules to regulate inactive CCR surface impoundments at inactive electric utilities, otherwise known as legacy CCR surface impoundments and CCR management units (CCRMUs). CCRMUs represent a broad general category of CCR disposal units, including inactive CCR landfills and other land-based disposal areas that had previously not been regulated under EPA’s CCR rules.

Proposed Amendments

The more notable and potentially impactful elements of the Proposed Rule are described below:

• Expansion of Option to Certify Closure by Removal for Legacy CCR Surface Impoundments: The Proposed Rule would create another option to certify closure of legacy CCR surface impoundments by removal if the removal was completed prior to November 8, 2024, under the oversight of a regulatory authority.

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Pittsburgh, PA

Public Sector Alert

(by Steve Korbel, Anna Hosack and Alex Giorgetti)

In Columbia Gas of Pennsylvania, Inc. v. Menallen Township, 351 A.3d 326 (Pa. Cmwlth. 2026), the Commonwealth Court struck down a township’s variable street opening inspection fees as applied to a public utility.  The Court held that the fees constituted impermissible utility regulation preempted by the Pennsylvania Public Utility Code, 66 Pa.C.S. § 101 et seq. (the “Code”).  This decision has immediate practical consequences for every Pennsylvania municipality that charges public utilities permit or inspection fees for work in the public right-of-way.

The Dispute and the Decision

Like most municipalities, Menallen Township (Township) maintained a street opening ordinance that imposed fees on anyone seeking to excavate or open a public roadway.  The ordinance included a flat application fee of $150.  It also imposed variable inspection fees calculated on a per hour and per square foot basis, intended to fund the Township’s inspection of the utility’s pipe installation work and its monitoring of road conditions following the restoration.  Columbia Gas of Pennsylvania, Inc. (Columbia Gas), a public utility regulated by the Public Utility Commission (PUC), challenged the variable fees after the Township assessed inspection charges that far exceeded the flat application amount.  Columbia Gas filed a petition for review in the Commonwealth Court’s original jurisdiction, arguing that the inspection fees were preempted under the field preemption doctrine established by the Pennsylvania Supreme Court in PPL Electric Utilities Corp. v. City of Lancaster, 654 Pa. 203, 214 A.3d 639 (Pa. 2019).

The Commonwealth Court left the $150 flat application fee undisturbed, but notably held that the variable inspection fees crossed the line from permissible right-of-way management into impermissible regulation of utility facilities and operations.  …