August 29, 2018

Pennsylvania Commonwealth Court Invalidates Portions of Chapter 78a Regulations as Unlawful

Environmental Alert

(by Jean M. Mosites and Kevin J. Garber)

On August 23, 2018, the Commonwealth Court issued a unanimous opinion invalidating components of the new pre-permit process created in 25 Pa. Code
§§ 78a.1 and 78a.15(f), and (g), pertaining to new “public resources.”  The Marcellus Shale Coalition (MSC) challenged the provisions as unlawful and unreasonable, seeking declaratory and injunctive relief.  The Marcellus Shale Coalition v. Department of Environmental Protection and Environmental Quality Board, 573 M.D. 2016.

There is no statutory right to judicial review of new regulations in Pennsylvania.  Such challenges must proceed in the form of declaratory judgment action in the Commonwealth Court or “as applied” in an appeal before the Environmental Hearing Board on a case-by-case basis.  The latter course is duplicative, lengthy and costly, offering only piecemeal relief.  MSC challenged portions of the new Chapter 78a regulatory package through a declaratory judgment action in October 2016, seeking relief for its members from regulations beyond the scope of EQB’s authority, regulations with high cost and little discernible benefit.

Count I of MSC’s Petition for Review challenged Sections 78a.15(f) and (g), and the related definitions contained in Section 78a.1 of the Chapter 78a regulations.  The provisions created a new pre-permitting process for well permit applicants, providing new notice and comment opportunities in addition to those expressly authorized by Act 13, as adopted in 2012.

Following a hearing for temporary injunctive relief, the Commonwealth Court preliminarily enjoined application of portions of the regulations on November 8, 2016.  MSC filed an application for partial summary relief on Count I on August 31, 2017.   Pending review of that application, the Pennsylvania Supreme Court affirmed the grant of preliminary injunction relief as to Count I on June 1, 2018. …

August 27, 2018

As Big Law Steps on Their Turf, Midsized Firms Bet on Niche Practices

The Legal Intelligencer 

(by Lizzy McLellan)

As more large firms restructure into multidisciplinary industry-focused groups, the niche practices emerging resemble some of the services midsize firms have been offering for years, or sometimes decades.

With increasing competition in the legal industry, and Big Law more often competing for the middle-market work midsize firms were built on, midsize firm leaders have been bullish about maintaining and expanding their specialized practices.

Babst, Calland, Clements and Zomnir, based in Pittsburgh, was built on a niche focus in environmental law from the start, and has expanded on that over the years, managing shareholder Donald Bluedorn said.

“Our philosophy is to pick specific areas and put together teams with as much sophistication as anyone in the country,” Bluedorn said, then deliver those services “at a lower price point.”

Since, the firm has added other niche practices that grow naturally from its environmental roots. ”We don’t just look for bolt-on practices,” Bluedorn said.

So when the Marcellus Shale play created business opportunities in Pennsylvania, the firm seized on the opportunity to grow an energy practice, which would co-mingle well with environmental law. And when it saw a chance to get involved with pipeline safety, it built on an already established regulatory practice in Washington, D.C., as well as the energy and environmental practices.

“We like to see multiple touchpoints with these areas we have,” Bluedorn said. “We really try to do a very conscious, well-thought-out approach.”

Most recently, the firm has built on that regulatory practice again, bringing together a mobility, transport and safety group to handle matters in the emerging area of unmanned aircraft, driverless cars and space technology. Timothy Goodman, a former U.S. …

August 24, 2018

Raise It or Waive It: Standing Can Play a Critical Role in Zoning Hearings

The Legal Intelligencer

(by Krista-Ann M. Staley and Amie L. Courtney)

While the setting may be significantly less formal—think a public works garage or community center gymnasium rather than a marble-columned historic landmark—standing requirements apply in the context of a zoning hearing as they do in a more formal courtroom setting. Therefore, whether representing a party seeking a zoning approval, a zoning hearing board or governing body considering a zoning application, or an objector, it is important to understand how to navigate the issue of standing during the initial proceeding.

The Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101, et seq., (MPC), the state’s zoning enabling legislation, clearly provides a “landowner” with standing to file a zoning application or pursue a zoning appeal. The statute broadly defines “landowner” as including the owner of the subject property, the holder of an option to purchase the property, an authorized lessee, or “other person having a proprietary interest in land”. However, Pennsylvania law does not provide a bright-line standard to determine whether a party has standing to object in a zoning proceeding. This is an important determination because a party with standing to object may cross-examine an applicant’s witnesses and present its own witnesses and evidence. A party with standing may also appeal the final determination. As a result, participation by an objector can significantly impact the path and outcome of a zoning case.

Pennsylvania case law provides a general framework to determine whether an objector has procedural and substantive standing, both of which are required to obtain “party” status in a zoning hearing. To have substantive standing, an objector must be “aggrieved” by having a direct interest in the subject of the proceeding that would be adversely affected by the action. …

August 24, 2018

Federal Court Partially Vacates U.S. EPA’s 2015 Coal Combustion Residuals Rule

Environmental Alert

(by Donald C. Bluedorn II and Gary E. Steinbauer)

On August 21, 2018, the D.C. Circuit Court of Appeals issued its Opinion in Utility Solid Waste Activities Group, et al. v. EPA , addressing the consolidated petitions challenging the United States Environmental Protection Agency’s (EPA) Coal Combustion Residuals (CCR) Rule. The Court largely upheld the challenges raised by environmental groups and denied the challenges raised by industry groups. A copy of the Opinion is available at https://www.cadc.uscourts.gov/internet/opinions. nsf/0/5A6D02C8038BA2CA852582F0004E0D37/$file/15-1219-1746578.pdf.

After years of studying CCR and public pressure stemming from catastrophic failures like the 2008 incident at the Tennessee Valley Authority’s Kingston, Tennessee facility, EPA promulgated the CCR Rule in 2015. For the first time since the federal Resource Conservation and Recovery Act was enacted in 1976, the Rule established minimum national “Subtitle D” criteria for existing and new CCR landfills and surface impoundments operated by electric utilities and independent power plants.

Not surprisingly, the Rule was challenged shortly after it was promulgated by a group of environmental organizations, known collectively as the “Environmental Petitioners,” and several groups of industry groups, known collectively as the “Industry Petitioners.” On June 14, 2016, the Court granted EPA’s motion to remand certain portions of the CCR Rule. Shortly before the Court held oral argument in November 2017, EPA filed a motion seeking voluntary remand on specific provisions of the CCR Rule that remained at issue in the litigation. More than three years after the Rule was challenged, the Court issued a lengthy 72-page opinion largely upholding the challenges of the Environmental Petitioners and denying the challenges of the Industry Petitioners.

Here is a quick summary of the key points from the Court’s Opinion:

  1. The Court granted EPA’s motion for a voluntary remand on three parts of the Rule:
  • The definition of “Coal Residuals Piles” as discussed in 40 C.F.R.

    • …

August 20, 2018

Obama-Era WOTUS Rule Back In Effect, What Happens Now?

Environmental Alert
(by Lisa M. Bruderly, Janet L. McQuaid, Gary E. Steinbauer)
Late last week, a South Carolina district court reinstated the Obama administration’s 2015 Clean Water Rule (referring to it as “the 2015 WOTUS rule”) in 26 states, including Pennsylvania, Ohio, New York, Maryland, New Jersey and the New England states.  The decision overturns a move by the Trump administration earlier this year to delay the applicability date of the 2015 WOTUS rule until early 2020 and brings the Rule’s definition of “waters of the United States” (WOTUS) into effect in these states, at least for the time being.  Unless the South Carolina decision is overturned or invalidated, the reinstatement of the 2015 definition of WOTUS could have significant Clean Water Act (CWA) permitting, compliance and enforcement implications for regulated entities in these 26 states, given that the 2015 definition of WOTUS is widely regarded by industry as unreasonably expanding the types of waterbodies under U.S. EPA and U. S Army Corps of Engineers’ jurisdiction.
Background Regarding the Clean Water Rule
Shortly after the August 28, 2015 effective date of the 2015 WOTUS rule, the Rule was challenged in federal courts, including the Sixth Circuit. While the Sixth Circuit preliminarily enjoined the Rule in October 2015 (See Ohio v. United States Army Corps of Eng’rs, 803 F.3d 804 (Oct. 9, 2015)), on January 22, 2018, the Supreme Court invalidated the Sixth Circuit’s preliminary injunction, holding that the district courts, rather than the courts of appeal, had original jurisdiction over the appeals (S.Ct. 16-299). Nat’l Ass’n of Mfrs. v. DOD, 138 S. Ct. 617 (2018).
In anticipation of the Sixth Circuit vacating its preliminary injunction (and the 2015 WOTUS rule coming into effect in all but then 13 states), on January 31, 2018, EPA and the Corps finalized a rule setting an applicability date for the 2015 WOTUS rule of February 6, 2020.  …

August 16, 2018

Is Your Employee Handbook Up to Date? Compare It With This Checklist

The Legal Intelligencer

(by Brian D. Lipkin)

When you are preparing or revising an employee handbook, this checklist may be helpful.

Acknowledgment

  • Do employees sign a signature page, confirming they received the handbook?
  • On the signature page, do employees agree to follow the policies in the handbook?
  • Does the signature page state that this handbook replaces any previous versions?
  • On the signature page, do employees agree that they will be “at-will” employees?
  • Do employees agree that the employer may change its policies in the future?

Wage and Hour Issues

  • Does the employer confirm that it will pay employees for all hours worked?
  • Before employees work overtime, are they required to obtain a supervisor’s approval?
  • During unpaid breaks, are employees completely relieved of all duties? (For example, while a receptionist takes an unpaid lunch break, this person shouldn’t be required to greet visitors or answer phone calls.)
  • Are employees paid when they attend a business meeting during lunch?
  • Are employees paid for attending in-service trainings?
  • Are employees paid while they take short breaks?

Paid Time Off

  • Has the employer considered combining vacation time, sick time, and personal time into one “bucket” of paid time off?
  • Does the paid time off policy line up with the employer’s business objectives? (For example, does it provide incentives for employees to use paid time off during seasons when business is slower?)
  • Does the handbook say what will happen to paid time off when employment ends? (In Pennsylvania, employers are not required to pay terminated employees for the value of their paid time off.

    • …

August 16, 2018

Pittsburgh’s Babst Calland Bulks Up Emerging Tech Practices

The Legal Intelligencer

(by Lizzy McLellan)

With its latest lateral hires, Pittsburgh-based Babst, Calland, Clements and Zomnir is doubling down on emerging technologies, including driverless vehicle technology.

The firm this week hired shareholder Justine Kasznica in its mobility, transport and safety group, as well as its corporate and commercial group. Also joining are intellectual property shareholder Carl Ronald and associate Michael Fink, also in the corporate and commercial group.

Kasznica’s practice is focused on unmanned aircraft, driverless cars and space companies. She and Ronald are both joining from Baer Crossey McDemus, a business and technology law boutique with offices in Philadelphia and Pittsburgh. Fink was an associate at Buchanan Ingersoll & Rooney.

The additions come a month after Babst Calland added William Godfrey, who was a senior U.S. federal regulatory chief at the National Highway Traffic Safety Administration.

“When I was approached by a recruiter who talked about Babst Calland, I had known of them as an oil and gas, environmental firm,” Kasznica said. But she quickly learned that the firm was also investing in its technology-related practices. A major selling point, she said, was that Babst Calland last year had hired Timothy Goodman, a former U.S. Department of Transportation lawyer, in Washington, D.C. He now leads the firm’s mobility, transport and safety group.

“In working with frontier technology, you’re essentially required to try to understand and work alongside policy and regulations that are either nascent, nonexistent or present but need to be adapted,” Kasznica said. “The channel to Washington, D.C., and the fact that Babst Calland has strategically built and focused on building that office … is absolutely critical and critical for the companies that will be working with us.”

Kasznica grew up interested in model aircraft and aviation, she said, then began to learn more about robotics during law school, through a friend of hers at Carnegie Mellon University. …

August 15, 2018

Five Babst Calland Attorneys Named as 2019 Best Lawyers® "Lawyers of the Year" and 33 Selected for inclusion in The Best Lawyers in America© by BL Rankings

Babst Calland is pleased to announce that five lawyers were selected as 2019 Best Lawyers “Lawyer of the Year” in the Pittsburgh, Pa. and Charleston, W. Va. Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant.

Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, professionalism, and integrity. Those named to the 2019 Best Lawyers “Lawyer of the Year” by BL Rankings include:

Kevin J. Garber, Natural Resources Law “Lawyer of the Year” in Pittsburgh, Pa. – In addition to the “Lawyer of the Year” award, Kevin Garber was also listed in the 2019 Edition of The Best Lawyers in America in Environmental Law, Energy Law, Water Law, and Litigation – Environmental.

Joseph K. Reinhart, Environmental Law “Lawyer of the Year” in Pittsburgh, Pa. – In addition to the “Lawyer of the Year” award, Joseph K. Reinhart was also listed in the 2019 Edition of The Best Lawyers in America in Natural Resources Law, Energy Law, and Litigation – Environmental.

Mark D. Shepard, Litigation – Environmental “Lawyer of the Year”  in Pittsburgh, Pa. – In addition to the “Lawyer of the Year” award, Mark D. Shepard was also listed in the 2019 Edition of The Best Lawyers in America in Commercial Litigation and Bet-the-Company Litigation.

Timothy M. Miller, Litigation – Environmental “Lawyer of the Year” in Charleston, W.Va. – In addition to the “Lawyer of the Year” award, Timothy Miller was also listed in the 2019 Edition of The Best Lawyers in America in Commercial Litigation, Bet-the-Company Litigation, Oil and Gas Law, and Litigation – Environmental. …

August 10, 2018

Complexities in determining title to oil and gas under Pennsylvania roadways

The PIOGA Press

(by Adam Speer)

The increased exploration of oil and gas throughout the Common wealth of Pennsylvania in recent years has highlighted the importance of determining the ownership of oil and gas underlying public roads and highways. More than 120,000 linear miles of state and local roadways traverse the Commonwealth. Public roadways―which include local roads, streets, alleys, expressways, interstates and turnpikes―may be created by conveyance, condemnation, dedication or prescription.

To determine proper ownership of the oil and gas under a roadway, a full title search of surrounding tracts must be completed. The time and method by which the roadway was created often influence the ownership of the oil and gas. This article, though not exhaustive, discusses the primary methods that roads may be created in Pennsylvania and provides a framework for determining oil and gas ownership under a public road.

Centerline presumption

Under Pennsylvania law, there is a general presumption that a conveyance of land bounded by a public roadway carries with it the fee to the center of the road as part and parcel of the grant, unless the road is owned in fee by the Commonwealth or municipality or an interest in the roadway has been expressly reserved. Where the side or edge of a street or highway is called for as a boundary in a deed, the grantee takes title in fee to the center line of such roadway. The grantee acquires a fee interest in the land to the centerline of the roadway, subject to the public’s right of passage and any reservations, and the grantor divests himself of his interest in the same. If a public roadway easement is later vacated, the property reverts “automatically and simultaneously” to abutting landowners. …

August 1, 2018

New PHMSA Rulemaking Proceeding Targets Changes to Class Location Requirements

Pipeline Safety Alert

(by James Curry, Keith Coyle, and Brianne Kurdock)

On July 31, 2018, the Pipeline and Hazardous Materials Safety Administration (PHMSA or the Agency) published an advance notice of proposed rulemaking (ANPRM) in the Federal Register asking for public comment on whether the Agency should change its class location requirements for gas pipeline facilities.  Specifically, PHMSA is seeking comment on alternatives to pipe replacements driven by class location changes.  Adopted nearly five decades ago, PHMSA’s class location requirements use population density and surrounding land uses to categorize the potential risk that gas pipeline facilities pose to public safety.

The Agency is asking the public to comment on whether the class location requirements should be updated to account for recent developments in the pipeline industry, particularly the widespread use of integrity management (IM) principles and new technologies.  The current regulations require operators to reduce pressure, replace pipe, or conduct hydrostatic pressure testing in response to class location changes, and PHMSA is considering whether other alternatives should be available.  Comments must be submitted to the Agency on or before October 1, 2018.

The ANPRM is PHMSA’s first new pipeline safety rulemaking proceeding in the Trump era.  The Agency began examining the need to modernize the class location regulations several years ago in response to a mandate that Congress included in the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, and PHMSA is framing the ANPRM as an extension of that earlier effort.  The Agency’s decision to issue the ANPRM sends a strong signal about its commitment to President Donald Trump’s regulatory reform agenda and willingness to address an issue of longstanding concern to the pipeline industry. …

July 30, 2018

Federal pipeline safety agency weighs new approach to handling population shifts

S&P Global

(by Sarah Smith)

The federal pipeline safety regulator may change the way it handles requirements for gas pipelines in areas where population density is on the rise, potentially addressing operator concerns about the disruptions that current policy can lead to.

When more people move into the areas around gas transmission pipelines, federal rules require pipe operators to shift the way they use their infrastructure, but the U.S. Pipeline and Hazardous Materials Safety Administration, or PHMSA, said July 30 that it is entertaining the idea of allowing companies to instead apply certain “integrity management” practices.

For the full article, click here. .

July 27, 2018

Zoning Hearing Board: Overlooked, Misunderstood or Misapplied Principles

The Legal Intelligencer 
(by Blaine A. Lucas and Alyssa E. Golfieri)
Pursuant to Section 901 of the Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101 et seq., (MPC), the state law establishing the framework for zoning and land use development regulations in Pennsylvania, every municipality in the commonwealth that enacts a zoning ordinance is required to create a zoning hearing board. A zoning hearing board is a quasi-judicial body that implements a system of checks and balances on a governing body’s legislative power to zone and regulate land development.
Zoning hearing boards have exclusive jurisdiction over eight discrete types of matters: substantive challenges to the validity of land use ordinances; appeals from the determination of a municipality’s zoning officer, including appeals from the granting or denying of a permit, the issuance of a notice of violation/cease and desist order, or the registration of nonconforming uses, structures, or lots; appeals from the administration of a floodplain provision or ordinance; applications for variances from the terms of a zoning or floodplain ordinance; applications for special exceptions under a zoning or floodplain ordinance; appeals from determinations related to the transfer of development rights or performance density provisions of a zoning ordinance; appeals from a zoning officer’s preliminary opinion on a proposed use or development; and appeals from a zoning officer’s or municipal engineer’s administration of any ordinances that regulates erosion and sedimentation control or stormwater management on projects unrelated to subdivisions, land developments, and planned residential developments.
Based on the exclusivity and scope of their jurisdiction, it is self-evident that zoning hearing boards have an integral role in assuring the fair and equal application of zoning and land use regulations across the commonwealth. Recognizing the important role zoning hearing boards play and the fact that such boards are in the best position to interpret and apply their municipality’s land use ordinances, appellate courts give a board’s findings and conclusions much deference.  …

July 17, 2018

The EPA and Corps Request Additional Comments on the Proposed Repeal of the Clean Water Rule

Environmental Alert
(by Lisa M. Bruderly and Gary E. Steinbauer)
Nearly one year after officially proposing to repeal the Clean Water Rule (CWR), the landmark 2015 Obama Administration rule that redefined “waters of the United States” and arguably expanded the geographic scope of the Clean Water Act (Act), the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (collectively, the “Agencies”) have clarified the legal basis for, and are soliciting additional comments related to, the proposed repeal. On July 12, 2018, the Agencies published a lengthy Supplemental Notice of Proposed Rulemaking (Supplemental Notice) in the Federal Register to clarify, supplement, and seek additional comment on their proposal to permanently repeal the CWR and recodify the regulatory definition of “waters of the United States” that existed before 2015. 83 Fed. Reg. 32227. Interested parties have until August 13, 2018 to submit comments in response to the Supplemental Notice.
As compared with the initial July 2017 proposal (82 Fed. Reg. 34899), the Supplemental Notice is rich in detail and includes significantly more legal analysis and citations, as well as references to and evaluations of documents included in the administrative record for the CWR. For almost every new or more detailed justification for the proposed repeal, the Agencies request comment. Some of the arguments and reoccurring themes for which the Agencies request comment include:

  • The CWR exceeds the Agencies’ authority under the Act by (1) failing to give sufficient effect to the statute’s use of the term “navigable” to define the Agencies’ jurisdiction and (2) focusing too much on the biological and environmental importance of wetlands.
  • The CWR is a misapplication of the “significant nexus” test for jurisdiction under the Act established by soon-to-be-retired U.S.

    • …

July 16, 2018

Energy Industry in WV and Ohio

Comcast Newsmakers

Tim Miller of Babst Calland talks to host Eric Minor about the Ohio Valley’s energy industry topics such as legal, regulatoryand NG drilling developments, infrastructure, legislative and construction and job growth outlook.

To watch the segment, click here.

July 13, 2018

Delaware Riverkeeper Network and May Van Rossum v. PADEP and Constitution Drive Partners, LP

Alert: PA Environmental Hearing Board Update
(by Jean M. Mosites and Kevin J. Garber)
On July 2, 2018, the Pennsylvania Environmental Hearing Board issued an opinion and order related to a discovery dispute, concluding that no discovery was appropriate in a third-party appeal from an amended settlement agreement under the Hazardous Sites Cleanup Act (HSCA).
The Pennsylvania Department of Environmental Protection signed a prospective purchaser agreement in 2005 with a developer to clean up an abandoned tube manufacturing facility in Chester County, amended the agreement in 2007 and 2010, and published notice of the agreement in 2017 as a settlement under HSCA. Section 1113 of HSCA provides that an appeal of a HSCA settlement agreement must be decided on the administrative record, which is limited to: (1) PADEP’s notice of the proposed settlement, (2) written comments to the settlement, and (3) PADEP’s response to those comments. The Delaware Riverkeeper sought more.
The EHB determined that a party seeking discovery in an administrative record review appeal under Section 1113 of HSCA bears a heavy burden to show discovery is necessary. None of the Delaware Riverkeeper arguments—based on Article I, Section 27 of the Pennsylvania Constitution, as well as allegations of improper procedure and bad faith—met that burden. The full opinion can be found here.
Click here for PDF.

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