Articles, Alerts & Perspectives

Legal Intelligencer

(by Max Junker and Anna Jewart)

Municipalities face many restrictions on how they may use real property, and Pennsylvania law places additional statutory restrictions on a municipality’s conveyance of property which has been used as a “public facility.”  The Donated or Dedicated Property Act, 53 P.S. §§3381-3386 (DDPA), states that “[a]ll lands or buildings… donated to a political subdivision for use as a public facility, or dedicated to the public use or offered for dedication to such use… shall be deemed to be held by such political subdivision, as trustee, for the benefit of the public with full legal title in the said trustee.”  “Lands” include all real estate, whether improved or unimproved, and a “public facility” includes, without limitation “any park, theater, open air theater, square, museum, library, concert hall, recreation facility or other public use.”  Any such lands or buildings are required to be used only for the purpose or purposes for which they were originally donated or dedicated, unless modified by court order.

Consequently, a municipality cannot simply sell or change the use of real property donated for or dedicated to use by the public.  This concept may seem familiar to the lay person and land use practitioner alike because, in essence, the DDPA codifies the common law of the “public trust doctrine” which requires that public property dedicated to public use be held by the municipality, as a trustee, for the benefit of the community.

However, the DDPA allows the municipality to dispose of public trust property in certain specific circumstances if approved by the court.  Specifically, under Section 4 of the DDPA, a municipality may apply to the orphan’s court for certain enumerated relief if, in the opinion of the municipality, the continuation of the original use of the property held in trust as a public facility is no longer practicable or possible and has ceased to serve the public interest.  …

PIOGA Press

(By Brianne Kurdock and Keith Coyle)

On August 24, 2022, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published a new final rule for onshore gas transmission pipelines (the Rule).  The Rule marks the completion of a three-phase rulemaking process, commonly referred to as the Gas Mega Rule, that began more than a decade ago.  The Rule focuses mainly on transmission pipelines and amends or adds various provisions to 49 C.F.R. Part 192.  The Rule will become effective on May 24, 2023.  There are six key areas that owners and operators of gas transmission pipelines should be aware of:

Definitions and Standards Incorporated by Reference

PHMSA added new definitions for terms referenced in the regulations, including close interval survey, distribution center, dry gas or dry natural gas, hard spot, in-line inspection (ILI), in-line inspection tool or instrumented internal inspection device, and wrinkle bend. The definition of transmission pipelines was revised to include a “connected series” of pipelines to clarify that transmission pipeline can be downstream of other transmission pipelines, and to allow operators to voluntarily designate their pipelines as transmission lines.

Management of Change

Operators of all onshore gas transmission pipelines must now evaluate and mitigate any significant changes that pose a risk to safety or the environment through a management of change process.  The process must include the reasons for the change, the authority for approving changes, an analysis of the implications, the acquisition of required work permits, and evidence documenting communication of the change to affected parties, time limitations, and the qualification of staff.    For pipeline segments not covered by Subpart O, operators must implement this management of change process by February 26, 2024. …

The Wildcatter

(By Nikolas Tysiak)

Welcome back to the real world! Now that summer is over, and Russian gas is being abandoned by many around the world, the oil and gas industry, and particularly the operators and land professionals in the Appalachian Basin, find themselves with more to do than ever before. There was not a lot of activity over the summer, but a few interesting developments arose.

SWN Production Company v. Kellam, 875 S.E.2d 216 (W. Va. 2022). Certified question to W. Va. Supreme Court from federal district court for the Northern District of West Virginia. Primarily, the Supreme Court was asked whether the 2006 case Estate of Tawney v. Columbia Natural Resources remained good law, and, if so, how to apply the requirements regarding deduction and calculation of royalties contained in that lease. After a lengthy discussion of the history behind royalty litigation in West Virginia and comparing the circumstances of Tawney to Leggett v. EQT Production Co., 239 W. Va. 264 (2017), the Court concluded that Tawney remains good law and is applicable to contractually created royalty provisions, while Leggett applies to statutorily created royalties.

Senterra Limited v. Winland, 2022-Ohio-2521. Marketable Title Act case. In a unique twist, the surface owner attempted to utilize the Duhig rule (a Texas case regarding repeated, identical reservations of oil and gas interests) to indicate that a ¼ oil and gas reservation was void at its inception, and therefore should be vested with the surface owners. The court disagreed, pointing to the unbroken chain of title of the severed mineral owners effectively preserving the reserved oil and gas interest. The court further found that reliance upon Duhig would not resolve the issue in favor of the surface owner in any case and found in favor of the severed mineral owner. …

Legal Intelligencer

(by Gina Falaschi and Christina Puhnaty)

The Pennsylvania Environmental Quality Board (EQB) will soon publish amendments to the Department of Environmental Protection’s (PADEP) regulations in 25 Pa. Code Chapters 121 and 129 for all major stationary sources of nitrogen oxides (NOx) or volatile organic compound (VOC) emissions, commonly known as the RACT III rule.  The rule would require major sources of either or both of these air pollutants in existence on or before August 3, 2018 to meet “reasonably available control technology” (RACT) emission limits and requirements by January 1, 2023.

These regulations are being promulgated to address Federal Clean Air Act (CAA) RACT requirements to meet the 2015 ozone National Ambient Air Quality Standards (NAAQS) in the Commonwealth.  The CAA requires a reevaluation of RACT when new ozone NAAQS are promulgated.  RACT is required in nonattainment areas, including the Ozone Transport Region which includes Pennsylvania.  The RACT III rulemaking establishes presumptive RACT requirements and emission limits for specific source categories of affected facilities.  The RACT III rulemaking also imposes additional requirements for all major sources of NOx and/or VOCs, not just those subject to the presumptive RACT requirements and limitations.

RACT III applies to all major sources of VOCs and NOx.  Because the Commonwealth is in the Northeast Ozone Transport Region, the major source threshold is 50 tons per year of VOCs and 100 tons per year of NOx.  PADEP estimates that 425 Title V facility owners and operators will be subject to the final rule.  Affected source categories include combustion units; municipal solid waste landfills; municipal waste combustors; process heaters; turbines; stationary internal combustion engines; Portland cement kilns; glass melting furnaces; lime kilns; direct-fired heaters, furnaces or ovens; …

Smart Business

(By Sue Ostrowski featuring Matthew Moses)

Labor and supply shortages, combined with rising interest rates, have many owners reconsidering the timeline for their construction projects — and in some cases, they are deciding not to proceed.

“Materials that used to be available in the normal course of business — concrete, steel, aggregate, light fixtures, lumber — that go into construction projects are now not as readily available,” says Matthew Moses, attorney at Babst Calland. “With interruptions in foreign trade, domestic supplies and transportation, things that used to be viewed as completely dependable now may not be available as needed. And the construction labor supply is smaller than it used to be before COVID, in both in the trades and in unskilled labor.”

Smart Business spoke with Moses about what to consider before deciding when — and if — to move forward with a construction project.

How are rising interest rates impacting construction?

If owners have their own funds to spend on a project, that’s great. But if they need financing, the cost of borrowing has increased and is widely expected to continue to rise. That could have a significant impact on the cost of a project, as a 1.5 percent interest rate increase on a $5 million project could result in a six-figure cost increase.

There is some pressure to borrow now, before interest rates rise further. Ask your lender how long it can commit to a rate lock for a particular project. That has typically been a few months but is changing with interest rate volatility. And while that was not previously a major problem, it can be if the project is contingent on other actions that push out the closing date on the loan. …

Babst Calland announced that Attorney Sloane Wildman has joined the firm’s Washington, D.C. office as a shareholder and member of its Environmental practice group.  

Sloane Wildman’s practice involves CERCLA and RCRA site remediation and counseling clients in all aspects of environmental law and regulation, including RCRA, CERCLA/EPCRA release reporting, Safe Drinking Water Act, TSCA, FIFRA, green marketing, the Clean Water Act and the Clean Air Act. She represents clients in administrative, civil judicial and criminal enforcement cases. Her wide-ranging RCRA experience includes counseling, defense of enforcement actions and permitting and encompasses all aspects of federal and state hazardous waste regulation, including solid and hazardous waste identification, generation, transportation, treatment, storage, disposal, closure and corrective action matters.

Ms. Wildman earned her J.D. from the University of Virginia School of Law and received her undergraduate degree from Dartmouth College.

Ms. Wildman is admitted to practice in the District of Columbia and California (inactive) and before the U.S. District Courts for the Eastern and Southern Districts of California. She is a member of the District of Columbia Bar Association’s Environment, Energy and Natural Resources Section and the American Bar Association’s Natural Resources, Energy and Natural Resources Section.

In his testimony on September 20, 2022 at the Pennsylvania House Environmental Resources and Energy Committee public hearing regarding “Wellhead to Stovetop – Conveying Energy in PA,” Babst Calland Attorney Keith Coyle, chair of the Marcellus Shale Coalition’s Pipeline Safety Workgroup, discussed the role and contribution of natural gas in the energy sector, and the importance of pipelines as a means of transporting natural gas from the wellhead to consumers.  He urged the Committee to recognize the importance of the natural gas industry and offered thoughts on the policies that should be considered in securing Pennsylvania’s energy future.

He explained, “Policies that impose unnecessary barriers on natural gas production or that prohibit the installation of pipeline infrastructure will create an energy system that is far less secure, particularly in the short term. The basic needs of everyday Americans cannot be met if one-third of the country’s primary energy production is unavailable or cannot be safely and reliably delivered to consumers.  Nor can the needs of the Commonwealth’s citizens be met without the natural gas that heats its homes and runs its power plants. As the recent developments in Europe show, policies that fail to account for the energy needs of a modern society are not progressive and often cause the greatest harm to those who are the most vulnerable.”

To view the live stream video of the House Environmental Resources & Energy Committee public hearing regarding “Wellhead to Stovetop – Conveying Energy in PA,” click here. 

Legal Intelligencer

(by Janet Meub)

On March 19, 2020, in response to the worldwide spread of the novel coronavirus, Pennsylvania Governor Tom Wolf issued an Executive Order  “…Regarding the Closure of All Businesses that are not Life Sustaining,” https://www.governor.pa.gov/wp-content/uploads/2020/03/20200319-TWW-COVID-19-business-closure-order.pdf. Many Pennsylvania workers were essentially locked out of the office. Governors throughout the U.S. issued similar orders, though what workers were deemed “essential” versus “non-essential” differed from state to state. Initially, attorneys in Pennsylvania were non-essential, but Ohio attorneys, for example, were essential! Gradually, businesses reopened, but not all employees returned to the office. We learned from the COVID-19 Pandemic that, for better or for worse, remote working in many employment contexts is here to stay.

Some professions and business models have been more adept at pivoting to remote work than others. Educators have been teaching cyber school and online college and graduate school classes for years. Telemedicine, once a novel way to reach patients in rural, underserved communities without access to hospitals or medical specialists, is now available to anyone with a computer or smart phone.

Many employers have reaped many benefits from remote working. Office space per square foot is no longer a concern with many employers declining to renew long-term, commercial leases. It has been widely reported that employees working from home are putting in longer hours and can be just as productive at home as they were in the office. There is no commute. Data entry at home is the same as data entry at the office – except without the overhead.

No change comes without challenge, however. Remote employment requires employers to re-examine how we manage and supervise employees. Take, for example, the legal profession. …

PIOGA Press

(By Lisa Bruderly)

Why is the WOTUS Definition Important?

This article is an excerpt of The 2022 Babst Calland Report, which represents the legal perspective of Babst Calland’s energy attorneys addressing the most current business and regulatory issues facing the energy industry. To view the full report, go to reports.babstcalland.com/energy2022-2.

Compliance with federal permitting associated with disturbances to streams and wetlands can be a challenge for large and small pipeline projects, causing delays and increased expenses. The extent of required federal permitting is largely dependent on the definition of “waters of the United States” (WOTUS), which determines federal jurisdiction under the Clean Water Act (CWA).

The definition of WOTUS must be considered anytime there is earth disturbance that may impact a stream or wetland. For example, pipeline construction requires U.S. Army Corps of Engineers (Corps) permitting for impacts from crossing, or otherwise disturbing, federally regulated streams and wetlands. Note that the WOTUS definition is included in 11 federal regulations and affects, not only federal permitting for impacts to regulated streams and wetlands (i.e., Section 404 permitting), but also the applicability of NPDES permitting requirements, federal spill reporting and SPCC plans.

Why is the WOTUS Definition Controversial?

The definition of WOTUS has been hotly contested and frequently changed for more than a decade. Presidents Obama, Trump and Biden have all proposed their own definitions, which largely reflected their agendas for more, or less, stringent regulation. The current definition is actually the definition that was in place prior to the Obama administration. The Corps and U.S. Environmental Protection Agency (USEPA) reverted back to this definition when President Trump’s Navigable Waters Protection Rule (NWPR) was vacated by the U.S. …

Attorneys Susanna Bagdasarova and Joseph A. Pope recently joined Babst Calland.

Susanna Bagdasarova joins the Corporate and Commercial and Emerging Technologies groups as an associate. She represents business clients in connection with a broad range of general corporate and commercial law matters, including entity formation, corporate structuring, corporate governance, commercial contracts, and mergers and acquisitions, with a focus on the technology sector. Prior to joining Babst Calland, Ms. Bagdasarova was an associate with Jones Day. She graduated summa cum laude from The Pennsylvania State University, The Dickinson School of Law in 2015.

Joseph Pope joins the Corporate and Commercial Group as senior counsel. Mr. Pope’s practice focuses on corporate and transactional matters, including corporate and commercial finance transactions, with a particular focus on transactions involving commercial real estate. Prior to joining Babst Calland, he was a senior attorney with Hergenroeder Rega Ewing & Kennedy. Mr. Pope graduated cum laude from the University of Pittsburgh School of Law in 2008.

Smart Business

(By Sue Ostrowski featuring Peter Schnore)

Commercial property owners in Allegheny County may be able to significantly reduce their real estate tax assessments — and their property taxes — in 2023.

“Real estate taxes are nearly always the largest operating expense for an income-producing property, and an important development in the calculation of the Common Level Ratio for Allegheny County presents a golden opportunity to reduce property taxes,” says Peter Schnore, Shareholder at Babst Calland.

Smart Business spoke with Schnore about what has changed in the assessment ratio, and how commercial property owners can take steps to reduce their property taxes.

What change is impacting commercial Allegheny County property owners?

The Pennsylvania State Tax Equalization Board recently published the Common Level Ratios (CLR) to be used in evaluating the merits of Pennsylvania tax assessment appeals for the 2023 tax year.

The CLR for Allegheny County has dropped significantly since its publication by the state last year — from 81.1 percent to 63.6 percent. This means that if a property was accurately assessed for 2022, all else equal, it will be overassessed by about 27 percent for Tax Year 2023.

A recent court challenge to the 2022 CLR’s calculation, which remains ongoing at the time of publication, appears to have led to the dramatic drop in the CLR for Allegheny County.

What can property owners do to take advantage of this opportunity?

Property owners should find an attorney who is familiar with this area of the law to help them gather evidence to present a strong case for proof of the property’s fair market value. …

Attorney Alex Farone who is also the Co-Chair of the Allegheny County Bar Association’s Communications Committee of the Young Lawyer’s Division and the Editor and Chief of its “Point of Law” Newsletter led the newsletter to receive a 2022 American Bar Association Award of Achievement. This award is presented to projects submitted by local, state and national ABA YLD Affiliates for well-planned, and executed, programs that contribute significantly to the public and the betterment of the legal profession. Recognition is determined by a jury of their peers.

View the “Point of Law” Newsletter, here.

View the Spring 2022 issue, here.