Articles, Alerts & Perspectives

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Mining

(Joseph K. Reinhart, Sean M. McGovern, Gina F. Buchman and Christina M. Puhnaty)

On September 23, 2023, PADEP published in the Pennsylvania Bulletin notice that the agency finalized its General Plan Approval and/or General Operating Permit for Coal-Mine Methane Enclosed Flares (GP-21). See 53 Pa. Bull. 6005 (Sept. 23, 2023). New or modified coal-mine methane enclosed flares in Pennsylvania are now subject to GP-21. Coal-mine methane enclosed flares with actual emission rates less than the following are exempted from GP-21’s permitting requirements:

• 4 tons per year (tpy) of carbon monoxide (CO) from a single enclosed flare or 20 tpy of CO from multiple enclosed flares;
• 1 tpy of nitrogen oxides (NOx) from a single enclosed flare or 5 tpy of NOx from multiple enclosed flares;
• 1.6 tpy of the oxides of sulfur (Sox) from a single enclosed flare or tpy 8 of the SOx from multiple enclosed flares;
• 0.6 tpy of particulate matter with a diameter of 10 microns or less (PM10) from a single enclosed flare or 3 tpy of PM10 from multiple enclosed flares;
• 1 tpy of volatile organic compounds (VOCs) from a single enclosed flare or 5 tpy of VOCs from multiple enclosed flares; and
• 0.5 tpy of a single hazardous air pollutant (HAP) from a single enclosed flare or 1 tpy of multiple HAPs from multiple enclosed flares. The HAPs may not contain Polychlorinated Biphenyls (PCBs), Chromium (Cr), Mercury (Hg), Lead (Pb), Polycyclic Organic Matter (POM), Dioxins, or Furans.

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Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Mining

(Joseph K. Reinhart, Sean M. McGovern, Gina F. Buchman and Christina M. Puhnaty)

On November 1, 2023, the Commonwealth Court of Pennsylvania held that the Pennsylvania Department of Environmental Protection’s (PADEP) CO2 Budget Trading Program Regulation (RGGI Rule) is an unconstitutional tax, declared the rule to be void, and enjoined PADEP from enforcing it. See Bowfin KeyCon Holdings, LLC v. PADEP, No. 247 M.D. 2022, 2023 WL 7171547 (Pa. Commw. Ct. Nov. 1, 2023).

After a lengthy rulemaking process, the RGGI Rule was published in the Pennsylvania Bulletin. See 52 Pa. Bull. 2471 (Apr. 23, 2022). The RGGI Rule would have linked Pennsylvania’s cap-and-trade program to the Regional Greenhouse Gas Initiative (RGGI), which is the regional, market-based cap-and-trade program designed to reduce carbon dioxide emissions from fossil-fuel-fired electric power generators with a capacity of 25 megawatts or greater that send more than 10% of their annual gross generation to the electric grid.

Two days after the RGGI Rule was published, a group of stakeholders filed a petition for review of the rule and an application for preliminary injunction in the commonwealth court. The court held a hearing on the preliminary injunction on May 10 and 11, 2022, and in a July 8, 2022, opinion, the court preliminarily enjoined the regulation as an unconstitutional tax.

In its November 1 decision on the merits, the court reaffirmed its earlier July 8, 2022, opinion, holding that the RGGI Rule constitutes a tax imposed by PADEP in violation of the Pennsylvania Constitution. …

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Mining

(Joseph K. Reinhart, Sean M. McGovern, Gina F. Buchman and Christina M. Puhnaty)

The Shapiro administration recently released its Interim Final Environmental Justice Policy (Interim Final Policy) and latest Environmental Justice Mapping and Screening Tool (PennEnviroScreen). The Policy took effect on September 16, 2023, when official notice of the interim final rulemaking was published in the Pennsylvania Bulletin. See 53 Pa. Bull. 5854 (Sept. 16, 2023).

The Commonwealth first adopted an environmental justice policy (EJ Policy) in 2004 to provide citizens in EJ communities enhanced public participation opportunities during certain Pennsylvania Department of Environmental Protection (PADEP) permit application processes. In 2018, PADEP circulated a draft revised policy for public comment, but ultimately withdrew the proposed revisions in 2020 following receipt of public comments. After conducting further outreach in 2021, PADEP proposed an updated policy that would refine and expand the scope of the withdrawn 2018 revisions. On March 12, 2022, PADEP released a draft of the EJ Policy for public comment, and subsequently received more than 1,200 comments during the comment period.

The Interim Final Policy is the latest version of the EJ Policy to have been released by PADEP since the comment period closed last spring. Although PADEP had previously indicated that it was working to prepare a Comment Response Document in tandem with the Interim Final Policy, it has yet to release such a document. The Interim Final Policy will likely have a tangible impact on permitting and enforcement processes for various industries going forward.

The Interim Final Policy requires use of the PennEnviroScreen tool, which will replace PADEP’s current EJ Areas Viewer tool. …

Harrisburg, PA

Babst Calland today announced the opening of its office in Harrisburg, Pa., and the addition of two experienced litigation attorneys, Michael Libuser and Stefanie Pitcavage Mekilo.

Led by Shareholder Casey Alan Coyle, who joined the firm in August 2022, the Harrisburg office provides legal counsel for local, regional, and national businesses, industry sectors, and trade associations with focused practices in litigation, energy and natural resources, environmental, and legislative and regulatory affairs, among others.

The Harrisburg team of attorneys offers deep litigation experience in matters pending before state and federal appellate courts, with a particular emphasis on appeals before the Pennsylvania Supreme Court. They also represent clients in disputes pending before the U.S. District Court for the Middle District of Pennsylvania and state trial courts throughout Central Pennsylvania and matters brought before the Pennsylvania Commonwealth Court as part of its original jurisdiction.

“It is an exciting time for Michael and Stefanie to join Babst Calland and open a new office in Harrisburg,” said Mr. Coyle. “The Harrisburg office is uniquely poised to offer its clients the best of both worlds—pairing the service and pricing of a litigation boutique with the deep-bench expertise and resources of a law firm with more than 35 years of experience serving clients ranging from Fortune 100 companies to small and mid-sized businesses nationwide.”

Mr. Libuser represents clients in state and federal trial and appellate courts, with a particular emphasis on cases before the United States District Court for the Middle District of Pennsylvania. He served as a law clerk to the Honorable Yvette Kane, Senior United States District Judge for the Middle District of Pennsylvania, where he drafted opinions for the Third and Ninth Circuit Courts of Appeals and handled a wide range of district court matters involving complex civil litigation, commercial contracts, administrative law, trade secrets, and various statutory claims. …

Pittsburgh, PA

Pretrial Practice & Discovery

American Bar Association Litigation Section

(by Joseph Schaeffer)

Whether attorneys have encountered an inadvertently produced privileged document in their own practice, it is a common enough occurrence that the procedure is well established: Suspend further review, sequester the document, and notify opposing counsel. What is not well-established is what attorneys should do when they encounter inadvertently produced non-privileged documents. A New York trial court recently dealt with this situation in a case of first impression.

In Pursuit Credit Special Opportunity Fund, L.P. v. Krunchcash, LLC et al., No. 615070/2022 (N.Y. Sup. Ct. Oct. 4, 2023), the plaintiff’s financial consultant had responded to a subpoena from the defendants by producing multiple emails with a Dropbox link in the message body. As the defendants discovered early in their review, the Dropbox link not only was “live,” it provided access to a bevy of the plaintiff’s sensitive internal files—including folders named “Legal,” “Tax,” and “Financial.” Rather than immediately notify plaintiff’s counsel, though, the defendants reviewed the Dropbox (with the exception of the “Legal” folder) and sent the plaintiff a letter about a week later that referenced the internal documents as part of a demand for voluntary dismissal of the litigation. The plaintiff responded by moving the trial court to order the defendants to show cause why they should not be sanctioned for accessing the Dropbox files.

The trial court granted the plaintiff’s motion and entered a sanction against the defendants of nearly $156,000, representing the plaintiff’s costs in bringing the motion. Though acknowledging the absence of directly applicable authority, the trial court found guidance in Rule 4.4 of the New York Rules of Professional Conduct. …

Pittsburgh, PA

Pretrial Practice & Discovery

American Bar Association Litigation Section

(by Andy DeGory)

The process of researching and identifying an expert witness can be a daunting task in a complex commercial litigation setting. However, securing the appropriate expert tailored to your needs can be a critical component of a successful litigation strategy. While there is no exact formula for expert witness selection, the following pointers can help lead your team towards the right witness and a favorable outcome:

• Utilize your colleagues and network. When starting your search for an expert witness, polling your colleagues and other connections in the legal field can instantly provide you with multiple favorable candidates. Furthermore, your network may be able to significantly narrow your search down to a few options that will fit the needs of your case. This option is also particularly helpful for lesser-experienced attorneys who might be starting an expert search for the very first time.
• Google is your friend. Litigation attorneys may joke about relying on Google for legal research, however, an expert-witness search is actually an appropriate opportunity to fire up the search engine. Google (or another search engine) allows you to cast a wide net to build your list of expert candidates prior to a more formal vetting of your options.
• Vet your candidates with Westlaw or Lexis. Once you have narrowed your search down to your favorite expert candidates, Westlaw and Lexis provide excellent tools for vetting your candidates’ background and history serving as an expert witness. In particular, these legal databases allow you to examine past cases in which the candidate has provided expert testimony, prior expert reports submitted in those cases, deposition transcripts (if available), and any motions in limine/to exclude the candidate’s testimony.

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Pittsburgh, PA

Smart Business

(By Adam Burroughs featuring Michael Fink)

A company’s capitalization table, simply put, details who has what ownership within a company. That’s straightforward when the company has a single owner. But as other equityholders are introduced, it can become much more complicated.

While an accurate cap table is crucial for determining who gets paid what when a company is sold, it’s also important every day of the company’s life.

“Companies should start dealing with their cap table from day one and will need to stay on top of it throughout the entire life of the enterprise,” says Michael E. Fink, a shareholder at Babst Calland. “An orderly, up-to-date cap table is central to well-informed business decisions.”

Smart Business spoke with Fink about the role of the cap table and how failing to accurately maintain it can be costly.

How are cap tables used?

Cap tables are critical when a company seeks new investment, such as via a private placement of preferred stock. That’s because every investor — both new ones as well as current investors, who typically need to approve new investment — needs to know its position on the cap table post-investment and what impact a contemplated investment would have on its position.

As companies get new funding and prior owners see their positions diluted, a cap table tracks who has how much equity and what type. Introducing multiple equity series often imposes multiple voting thresholds, so the cap table allows management and stakeholders to see what sort of voting blocs serve to approve any corporate action. Such actions can range from mundane to fundamental, such as approving a merger or replacing somebody on the board of directors. …

Pittsburgh, PA and Washington, DC

FNREL Water Law Newsletter

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

On January 28, 2023, the Pennsylvania Department of Environmental Protection (PADEP) released an updated draft of the Pennsylvania Post-Construction Stormwater Management Manual (Manual or PCSM Manual). This Manual is intended to establish guidance standards for the management of stormwater through the implementation of stormwater control measures (SCMs) and other measures to comply with the regulatory requirements under 25 Pa. Code ch. 102.

This Manual was developed to update and replace the Pennsylvania Stormwater Best Management Practices Manual that PADEP published in December 2006 in order to reflect and incorporate the advancements in stormwater processes since that time. The Manual now extends beyond the avoidance and minimization of historic stormwater problems to include mitigation through the regulation of municipal separate storm sewer systems and combined sewer systems. It also includes an increased focus on the resilience and maintenance of SCMs.

In the Manual, SCMs are synonymous with “best management practices” (BMPs) as defined in 25 Pa. Code § 102.1. This term is intended to reflect the improved understanding of stormwater management. The use of the term SCM is also intended to clarify the functions of stormwater BMPs, consistent with a national trend to do so.

Ultimately, the objective of the PCSM Manual remains the same as the 2006 Stormwater BMP Manual: “to protect, maintain, reclaim and restore water quality and the existing and designated uses of the waters of the Commonwealth.” Similar to other guidance documents, this Manual serves as a supplement to federal and state regulations, providing numerous examples of SCMs that can be employed to meet regulatory requirements. …

Pittsburgh, PA

Legal Intelligencer

(by Blaine Lucas and Anna Hosack)

A frequent, if folksy, recitation of the purpose behind zoning and land use restrictions is to prevent problems caused by the “pig in the parlor instead of the barnyard.”  In other words zoning regulations recognize sometimes a nuisance can be caused by putting the right thing in the wrong place.  Therefore, zoning ordinances attempt to keep more “offensive uses” away from more sensitive uses.  However, prohibiting a use on paper is one thing, ensuring ordinance compliance is another.  The Commonwealth Court in Township of Cranberry v. Randy J. Spencer, Nos. 568, 569, and 570-CD-2022 (Pa. Cmwlth. Aug. 30, 2023) (Spencer II)[1] recently considered one municipality’s decades long battle over operation of a junkyard in violation of its zoning ordinance.  A review of the history of this case provides the opportunity to consider the pros and cons of different enforcement options available to municipalities when faced with ongoing violations.

In Spencer, the owner of six parcels located in Cranberry Township, Butler County had been storing a multitude of junk vehicles (117 cars, 11 box trailers, 7 motorhomes, and 8 travel trailers) on his properties in violation of the Township zoning ordinance.  The Township had been trying for over a quarter century to induce the property owner to remove the junk vehicles, and he had even paid fines related to the same in the past – yet he never removed the vehicles.  In 2019, as authorized by Section 616.1 of the Pennsylvania Municipalities Planning Code, 53 P.S. §616.1 (“MPC”) the Township served five “enforcement notices” (referred to herein as “notices of violation” or “NOVs”) against five of the properties for the unlawful operation of a junk yard in the Township’s A-1 Conservation District.  …

Washington, DC

Former transportation executive and veteran regulatory and environmental attorney, James C. Chen, has joined Babst Calland as a Shareholder in the Emerging Technologies practice in the law firm’s growing Washington, D.C. office.

Mr. Chen brings his deep experience in strategic planning and managing legal, policy and regulatory affairs for public and private companies with a focus on emerging technologies in the transportation sector, particularly electrification and sustainable energy.

“A revolution is occurring in the transportation and energy industries – from how we generate and store energy to power various modes of transportation to how those modes are operated with autonomous and artificial intelligence systems to the way we source, process and recycle the minerals needed to enable those modes,” said Mr. Chen. “Moreover, the challenge facing this revolution is not just figuring out how to best power new transportation technology, it’s also about how to best operate the factories that manufacture them.”

For the past decade, in his executive leadership roles for several new transportation technology companies, Mr. Chen was instrumental in the commercialization of modern electric vehicles and the way they are distributed and sold. Most recently, he was Vice President of Public Policy & Chief Regulatory Counsel for Rivian Automotive, LLC and previously, was Vice President of Regulatory Affairs & Deputy General Counsel at Tesla, Inc.

“We are delighted that Jim Chen is now a part of our firm and our Washington, D.C. office,” said Babst Calland Managing Shareholder Donald C. Bluedorn II. “Jim is a great person, and he has an outstanding reputation and track record as a leader in the electric transportation and sustainable energy space. His industry experience and focused approach to providing strategic and creative solutions utilizing new technologies will be a tremendous resource for our clients.”

In addition to managing his own private practice, Mr. …

Pittsburgh, PA

Allegheny County Bar Association- Lawyers Journal

(By Peter Schnore)

The “Common Level Ratio” (CLR) is a figure calculated by a state administrative body every year for every county. It is calculated upon data that each county’s assessment office is to regularly provide to the state. It is expressed as a percentage – “ratio” is a misnomer.

The CLR is very significant in Pennsylvania tax assessment appeals, because Pennsylvania counties rely on irregularly-conducted “base year” assessments. By statute, the CLR is applied to a Board of Assessment or Court’s determination of current fair market value of a property at issue on appeal to set its assessment, with the intention that by doing so, the assessment will be sufficiently uniform with that county’s base year assessments.

Attention has been drawn to Allegheny County’s most recent CLRs following a challenge to how it was calculated for Tax Year 2022. The details of that case are very interesting, but are not germane to this article. This challenge ultimately resulted in a significant drop in that CLR, from 81.1% to 63.5%. The implications of this were significant: A property fairly assessed for 2022 based on the original CLR was suddenly more than 27% over-assessed (.811/.635 = 1.277). Allegheny County Council afforded property owners a second opportunity to appeal based on this development, and as one might expect, many property owners (those who were informed, and who had sufficient money at stake to make it worthwhile to appeal) took advantage of that opportunity. It is noted that the CLR applicable to Tax Year 2024 is 54.5%, further increasing the possibility that a given property is over-assessed.

Below are four observations regarding the Common Level Ratios. The first relates to Allegheny County, the others are points applicable statewide. …