June 14, 2018

Pennsylvania Environmental Hearing Board continues analysis of the Environmental Rights Amendment

The PIOGA Press

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

The Pennsylvania Environmental Hearing Board has issued several adjudications and opinions regarding challenges brought under Pennsylvania’s Environmental Rights Amendment (ERA) since the Pennsylvania Supreme Court decision in Pennsylvania Environmental Defense Foundation v. Commonwealth (PEDF) last June. PEDF set aside the long-standing three-part test in Payne v. Kassab used to analyze claims brought under the ERA and replaced it with a standard based on the text of the ERA and principles of Pennsylvania trust law. The PEDF decision addressed the allocation and use of royalties generated by leasing publicly owned oil and gas interests and did not provide a definitive test to be applied in the permitting context.

The board has addressed the obligations imposed by the ERA in Friends of Lackawanna v. DEP and Keystone Sanitary Landfill, (FOL), Center for Coalfield Justice and Sierra Club v. DEP, (CCJ) and Center for Coalfield Justice and Sierra Club v. DEP. The most recent opinion, issued on May 11 in the Delaware Riverkeeper case, reflects a continuation of the analysis provided by these earlier decisions.

Delaware Riverkeeper Network v. DEP

In The Delaware Riverkeeper, et. al. v. DEP and R.E. Gas Development, LLC the board upheld well permits and renewals issued by the Department of Environmental Protection in an appeal based in part on the ERA. Two citizens groups, the Delaware Riverkeeper and the Clean Air Council, along with several residents of Middlesex Township (collectively, Delaware Riverkeeper), appealed unconventional gas well permits and subsequent renewals issued to R.E. …

June 13, 2018

Babst Calland Expands Mobility, Transport and Safety Practice Former U.S. Department of Transportation and NHTSA Enforcement Division Chief Will Godfrey Joins Law Firm

Babst Calland announced the addition of William L. Godfrey as Director, Mobility, Automation and Safety.

The Firm is expanding its capabilities to support the developing needs of companies with emerging technologies.  It provides strategic leadership with business and legal advice for manufacturers, suppliers, start-ups, technology companies and government entities in the full-spectrum of transportation regulatory, safety, product quality, and automation matters, including those related to automated/autonomous driving systems.

“Will Godfrey’s expertise and creativity deepens our unique vision to deliver full-stack solutions to clients’ problems that integrate technical and engineering know-how with legal insight to expand business opportunities,” said Tim Goodman, Chair of Babst Calland’s Mobility, Transport and Safety Group, and former National Highway Traffic Safety Administration Assistant Chief Counsel for Enforcement and Federal Senior Executive.

A former General Motors vehicle engineer, production manager and senior U.S. federal regulatory chief at the National Highway Traffic Safety Administration (NHTSA)/U.S. Department of Transportation (DOT), Will Godfrey will assist clients in achieving their business goals and navigating obstacles by applying a current and detailed understanding of the federal government’s approach to transportation safety regulation (particularly motor vehicles), including its programs, processes, and personnel.

Godfrey spent nearly a decade at NHTSA/DOT, where he served in various leadership capacities.  Among other things, as NHTSA’s Trends and Analysis Division Chief, he led the oversight, analysis, and investigation of more than 1,100 vehicle, equipment, tire, motorcycle, and child car seat manufacturers globally, including TREAD Act/Early Warning Reporting Program and the integration of new, data-driven techniques.  As a senior policy advisor to the NHTSA Administrator, he led the agency’s comprehensive reorganization of the NHTSA Office of Defects Investigation (ODI).

“Will Godfrey is well-regarded and uniquely qualified to serve clients with emerging technologies as a senior technical and strategic advisor, integrated with our best in class legal and technical team,” said Donald C. …

June 13, 2018

GDPR Client Alert Part 1: What it is, What it Means in the U.S., and How U.S. Companies Should React

Corporate and Commercial Alert

(by Johanna H. Jochum and Kevin T. Wills)

On May 25, 2018, the European Union General Data Protection Regulation No. 2016/679 (GDPR), which limits personal data processing, became effective and enforceable.  Unlike most EU regulations, portions of the GDPR are applicable to companies in third party countries—including companies in the United States.

The extraterritorial ramifications of the GDPR are already apparent.  Many U.S.-based companies that generate revenue from processing large amounts of personal data have recently revised their privacy policies to comply with the GDPR requirements.  However, for companies with business models that do not center on personal data processing, the extent of the GDPR’s reach and application is less clear.

1. What is the GDPR?

In the age of the internet, nearly everyone routinely shares personal data in everyday tasks. The purpose of the GDPR is to protect the “fundamental rights and freedoms” of people who share that personal data by limiting the extent a third party can process that personal data.

The GDPR’s definitions of “personal data” and “processing” are broad enough that most online activities are captured. For example, “personal data” can be “any information” relating to an identifiable person, including a person who can be identified by a username or location ID.[1] Further, “processing” is defined to include activities such as collection, storage or dissemination of personal data.[2]

Generally speaking, no company may process personal data that is distributed during these everyday tasks at all unless the data falls into one of six broad exemption categories: (1) consent; (2) contractual obligations; (3) legal obligations; (4) protection of “vital interests”; …

June 12, 2018

Babst Calland builds mobility, transportation and safety practice

Pittsburgh Business Times 

(by Patty Tascarella)

Pittsburgh’s seventh-largest law firm, best known for its energy and environmental practices, is preparing for a potential surge in work linked to advancements with autonomous vehicles.

Babst Calland is building a foundation through its mobility, transportation and safety practice, capitalizing on emerging technologies and synergies between its downtown headquarters and fast-growing office in Washington, D.C.

For the full article, click here.

June 7, 2018

High Court Rejects NLRB’s Position That Class Waivers Violate Federal Law

The Legal Intelligencer

(by Sean R. Keegan)

The U.S. Supreme Court’s recent decision in Epic Systems v. Lewis is a win for employers who have included or wish to include class action waivers in arbitration agreements that employees are required to sign as a condition of employment. On May 21, the Supreme Court rejected the existing position of the National Labor Relations Board (NLRB), which had held that arbitration agreements waiving the right to pursue class or collective actions violated federal labor law. The Supreme Court overturned the NLRB and held that the Federal Arbitration Act (FAA) requires such mandatory arbitration agreements to be enforced according to their terms. Following this decision, individual arbitration provisions may preclude employees from pursuing class or collective actions to resolve employment disputes.

The Supreme Court held that Congress has instructed in the Federal Arbitration Act that arbitration agreements providing for individualized proceedings must be enforced, and neither the Federal Arbitration Act’s saving clause nor the National Labor Relations Act suggests otherwise. Prior to Epic Systems, the NLRB had interpreted Section 7 of the National Labor Relations Act to encompass the right to bring a class or collective action, as it gives employees the right to organize, bargain collectively and engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Consequently, the NLRB’s position was that an employment agreement that required employees to resolve their workplace disputes (such as wage and hour and discrimination claims) by arbitration on an individual basis was an unfair labor practice under Section 8 of the National Labor Relations Act.

Before the Epic Systems decision there was a split in the circuit courts. …

June 7, 2018

Pennsylvania Supreme Court Reverses Approval of Oil and Gas Well on Narrow Grounds

Energy and Natural Resources Alert

(by Blaine A. Lucas and Robert Max Junker)

In Gorsline, Court Declines to Rule on Broader Issue of Compatibility With Uses in Residential and Agricultural Zoning Districts, but Suggests that Municipalities May Permit Unconventional Natural Gas Drilling in any and all Zoning Districts

The Pennsylvania Supreme Court published its long-awaited opinion in Gorsline v. Board of Supervisors of Fairfield Township on June 1, 2018.  Although the majority reversed the Commonwealth Court’s decision affirming the granting of a conditional use for an unconventional natural gas well pad, it did so in a narrow holding, finding that Inflection Energy, LLC (Inflection) did not present enough evidence before the Fairfield Township (Township) Board of Supervisors (Board) establishing that its proposed unconventional gas well pad was similar to other uses allowed in the Township’s  Residential-Agricultural Zoning District (R-A District).  Unlike most zoning ordinances, the Township’s zoning ordinance did not specifically authorize oil and gas wells.  Instead, Inflection had relied upon a “savings clause,” which allowed uses “similar to” the other uses specifically allowed in the R-A District.

Despite headlines and press releases touting the Gorsline decision as a wholesale rejection of oil and gas development in residential and agricultural zoning districts, its ruling was much more limited.  In fact, language in both the Gorsline majority and dissenting opinions largely rejects the post-Robinson Township assertion of many shale gas opponents that natural gas wells must be relegated to industrial zoning districts and are fundamentally incompatible with residential or agricultural zoning districts.

Background

Babst Calland’s overview of the Commonwealth Court’s September 14, 2015 decision can be found here.  …

June 5, 2018

Second Circuit Affirms Gathering Agreements can be Rejected in Bankruptcy

Energy Alert

(by David W. Ross, Mark A. Lindsay and Erica K. Dausch)

On May 25, 2018, in In re: Sabine Oil & Gas Corporation, 2018 WL 2386902 (2d. Cir. May 25, 2018), the United States Court of Appeals for the Second Circuit affirmed that a bankrupt energy and production company could reject its gas gathering agreements with a midstream company under Section 365 of the Bankruptcy Code because the gas gathering agreements did not create or involve an interest in real property.

Background
Sabine Oil & Gas Corporation (Sabine), an energy and production (E&P) company, filed for Chapter 11 bankruptcy protection in 2015 in the Southern District of New York.  Prior to its bankruptcy filing, Sabine entered into gathering agreements (the “Agreements”) with Nordheim Eagle Ford Gathering, LLC (Nordheim), whereby Sabine was required to “dedicate” all of the gas it produced in a designated area to Nordheim, which would then gather and treat the gas.  If Sabine could not deliver the minimum required amounts of gas to Nordheim, it was required to make significant deficiency payments.

Section 365 of the Bankruptcy Code permits a debtor to reject pre-petition executory contracts and unexpired leases that the debtor deems to be burdensome, thereby relieving the debtor of the obligation to perform moving forward.  Agreements that involve the conveyance or creation of interests in real property (other than unexpired leases) are generally not subject to rejection under Section 365.

Sabine sought to reject the Agreements under Section 365 because Sabine deemed the terms of the Agreements, including the requirement to make significant deficiency payments, overly burdensome.  Nordheim argued that the “dedications” contained in the Agreements were “covenants that run with the land” and thereby constituted interests in real property that were not subject to rejection under Section 365. …

May 22, 2018

Pennsylvania Supreme Court rejects DEP’s ‘water-to-water’ theory of violations under the Clean Streams Law

The PIOGA Press

(by Kevin Garber, Jean Mosites and Esther Mignanelli)

In a case of first impression, the Pennsylvania Supreme Court rejected the Department of Environmental Protection’s untested legal theory that penalty liability under the Clean Streams Law continues as long as any constituents of a release remain in waters of the Commonwealth—days, months and years after the release has been stopped.

On March 28, the Supreme Court held “[t]he mere presence of a contaminant in a water of the Common – wealth or a part thereof does not establish a violation of Section 301, 307, or 401 of the Clean Streams Law, since movement of a contaminant into water is a predicate to violations.” EQT Prod. Co. v. Com., Dep’t of Envtl. Prot., 6 MAP 2017, slip op. at *37 (Pa. Mar. 28, 2018) (emphasis in original). In other words, a violation of these sections of the Clean Streams Law is based on the initial entry of pollutants into waters of the Commonwealth, not the presence or movement of constituents within such waters.

The Supreme Court’s opinion provides necessary clarification concerning the scope of liability for penal – ties under the Clean Streams Law for all persons, entities, businesses and industries that are responsible for remediation, those who would redevelop brownfield properties for reuse under Act 2, as well as any property owner with an historic contamination in groundwater that it did not cause. The decision reaffirms that penalty liability is distinct from cleanup liability and recognizes that penalties are neither appropriate nor effective in altering the time that may be necessary for full remediation.

The parallel proceedings between EQT and the department
The court’s statutory construction stemmed from a controversy between EQT Production Company and DEP regarding the liability and penalties that could be imposed for  a release from an onsite pit at a Marcellus Shale well pad in Tioga County in 2012. …

May 16, 2018

Pennsylvania Environmental Hearing Board’s Analysis of Oil and Gas Well Permitting and the Environmental Rights Amendment

Environmental Alert 

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

On May 11, 2018, in The Delaware Riverkeeper, et. al. v. DEP and R.E. Gas Development, LLC., the Pennsylvania Environmental Hearing Board issued an opinion upholding well permits and renewals issued by the Department of Environmental Protection in an appeal based in part on Article I, Section 27 of the Pennsylvania Constitution, commonly known as the Environmental Rights Amendment (ERA). EHB Dkt. No. 2014-142-B (consolidated with 2015-157-B) (May 11, 2018).

The ERA provides:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

The Board previously addressed the ERA in Friends of Lackawanna v. DEP and Keystone Sanitary Landfill, EHB Dkt. No. 2015-063-L (November 10, 2017) (FOL) and Center for Coalfield Justice and Sierra Club v. DEP, EHB Dkt. No. 2014-072-B (August 15, 2017) (CCJ). In another matter involving the Center for Coalfield Justice and DEP permitting action with respect to proposed mining operations, the Board also analyzed the ERA in a decision denying a petition for supersedeas. Center for Coalfield Justice and Sierra Club v. DEP, EHB Dkt. No. 2018-028-R (April 24, 2018). All of these cases analyze Department permitting decisions in light of the Pennsylvania Supreme Court’s June 20, 2017 decision in Pennsylvania Environmental Defense Foundation v. …

April 23, 2018

Automated/Autonomous Driving Systems (ADS) Innovation Boot Camp for Automotive Product Liability Litigators

Attorney Tim Goodman will be presenting a pre-conference workshop “Automated/Autonomous Driving Systems (ADS) Innovation Boot Camp for Automotive Product Liability Litigators” at the American Conference Institute’s Automotive Product Liability Conference, July 18-20, 2018.

Automotive experts forecast that within the next five years, we will be sharing the road with automated/autonomous vehicles on a daily basis. In theory, vehicular automation is intended to increase safety by eliminating the human error component that causes most accidents. However, in practice, the prospect of every OEM developing an autonomous vehicle does not come without concerns, especially relative to automotive product liability. Despite the intended consequences of autonomous vehicles, there are certain outcomes that are leaving members of the legal community scratching their heads. Join attorneys and technical specialists who are helping shape ADS policy in the mobility, transport and safety space.

This workshop will provide insights into this technology, along with the legal and regulatory ramifications. Points of discussion, among other things, will include:

  • SAE levels of driving automation
  • ADS systems, sensors, connectivity, architecture and related issues
  • ADS and self-certification of applicable federal safety standards
  • Homologation and regulatory compliance challenges
  • Innovative mobility and safety approaches
  • Best practices and emerging trends
  • Recent legislative and regulatory developments

For more information about the conference and this pre-conference workshop, click here.

April 23, 2018

EPA’s ban on ‘unconventional’ wastewater discharges to POTWs

The PIOGA Press 

(by Jean M. Mosites and Abigail F. Jones)

On June 28, 2016, the U.S. Environmental Protection Agency (EPA) published a rule entitled “Effluent Limitation Guidelines and Standards for the Oil and Gas Extraction Point Source Category,” which prohibits the discharge of unconventional wastewater to publicly owned treatment works (POTWs). The rule went into effect on August 29, 2016.

The prohibition, now codified in 40 C.F.R. §§ 435.33 and 435.34, applies to “wastewater pollutants associated with production, field exploration, drilling, well completion or well treatment for unconventional oil and gas extraction.” The phrase “unconventional oil and gas extraction” (UOG) is defined in the rule to mean oil and natural gas produced from “a shale and/or tight formation (including, but not limited to, shale gas, shale oil, tight gas, tight oil).”

Subsequently, the rule was challenged in court and has been remanded to EPA for review and possible revision. The legal challenge to the rule, described in detail below, relates to its applicability to Pennsylvania-defined “conventional” oil and gas operators. However, EPA’s administrative review of the rule could affect oil and gas wastewater disposal options for both conventional and unconventional operators in Pennsylvania.

Implementation deadline extension

In the preamble to the publication of the final rule, EPA stated that no operators subject to the rule were currently discharging to POTWs. Based on this understanding, the rule was to go into effect within 60 days of publication. Following promulgation of the rule, EPA received letters indicating that there were facilities likely discharging UOG wastewater to POTWs in Pennsylvania. As a result, EPA issued a final rule on December 7, 2016, to extend the implementation deadline for existing sources that were lawfully discharging wastewater to POTWs between April 17, 2015, and June 28, 2016. …

April 22, 2018

UNcathlon raises nearly $90,000 for Special Olympics

Pittsburgh Post-Gazette

(by Patricia Sheridan)

The atmosphere was festive, the participants enthusiastic and the sun was shinning Sunday for the second annual UNcathlon at the Oval Sportsplex in Schenley Park.

The competitive event for athletes with intellectual disabilities supports and is presented by the Special Olympics of Pennsylvania.

For the full article, click here.

April 16, 2018

Historic Preservation Through Land Use Controls: What is it? How Does It Work?

The Legal Intelligencer

(by Blaine Lucas and Alyssa Golfieri)

Preservation of the commonwealth’s historically significant natural, scenic, cultural, and architectural features and resources is a rising priority among local municipalities—and for good reason. Historic preservation not only helps cultivate an aesthetically pleasing environment for residents and business owners to live, work, and play, but it can increase property values, generate new tourism/economic development opportunities, and encourage future development with high-quality site design and architectural patterns. Municipalities are vested with several options when it comes to historic preservation. The two most common are the utilization of their authority under the Pennsylvania Historic District Act, 53 P.S. Section 8001 et seq., (Historic District Act) and the Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101 et seq., (MPC).

The Historic District Act was enacted in 1961 and confers upon counties, third class cities—First and second class cities (i.e., Philadelphia and Pittsburgh) are expressly excluded from the Historic District Act’s grant of authority—boroughs, incorporated towns, and townships the authority to designate historic districts within their geographical limits. In order to create a historic district, a municipality must do two things. First, it must adopt an ordinance. While the Historic District Act does not command in great detail what content or subject matters the ordinance must cover, it should, at a minimum, express the municipality’s intent to create a historic district pursuant to the Historic District Act, delineate the historic district’s boundaries, establish a historical architectural review board (HARB), enumerate the powers and duties of the HARB, and set forth guidelines and the approval process applicable to the issuance of a certificate of appropriateness (COA). Next, the municipality must provide the Pennsylvania Historical and Museum Commission written notice of the ordinance’s enactment.  …

April 16, 2018

Fourth Circuit’s “Conduit Theory” Decision Extends CWA Liability for Migrating Groundwater Contamination

Environmental Alert

(by Lisa M. Bruderly and Gary E. Steinbauer)

On April 12, 2018, the U.S. Court of Appeals for the Fourth Circuit in Upstate Forever v. Kinder Morgan Energy Partners, L.P., No 17-1640, held that the Clean Water Act (CWA) regulates point source discharges that reach “navigable waters” through groundwater with a “direct hydrologic connection” to the surface water. With this decision, the Fourth Circuit (which includes Maryland, North Carolina, South Carolina, Virginia and West Virginia) has joined the Ninth Circuit in recognizing the so-called groundwater “conduit theory” of liability under the CWA, a theory environmental groups are relying upon in several CWA citizen suits across the country. Under the groundwater “conduit theory,” separately regulated and permitted wastewater collection basins, impoundments, wells, and/or pipelines that result in groundwater contamination could be the targets for CWA liability, even though it is widely accepted that the CWA does not regulate discharges to groundwater itself. These cases have broad implications for many industries, including steelmaking, pipelines, mining, chemical manufacturing, oil and gas development, and utilities.

Background and District Court Decision

The Upstate Forever case dates back to 2016, when two environmental organizations filed a lawsuit alleging CWA violations stemming from a 2014 pipeline leak. According to the complaint, 369,000 gallons of petroleum products leaked from an underground pipeline. The plaintiffs alleged that the pipeline contents seeped into groundwater and later into two nearby creeks and their adjacent wetlands downgradient from the leak. The leak was fixed within a few days of discovery and approximately 209,000 gallons of petroleum products were recovered through remediation efforts overseen by a state environmental regulatory agency. The plaintiffs, however, alleged that a plume of petroleum contaminants continued to migrate from groundwater to surface water several years after the leak was fixed. …

April 9, 2018

Taking "Yes" for an Answer; Court Dismisses NPDES Permit Challenge as Non-Justiciable Following Elimination of Problematic Effluent Limit

Environmental Legal Perspective 

(by Christopher B. (Kip) Power)

In a decision with potential ramifications for challengers of many different types of environmental permits and approvals, the U.S. District Court for the Southern District of West Virginia (the “Court”) recently dismissed a lawsuit filed by the Sanitary Board of the City of Charleston (the “CSB”) seeking to overturn a decision of the Environmental Protection Agency (EPA) regarding the permissible concentrations of copper in discharges from the CSB’s wastewater treatment plant to the Kanawha River. Sanitary Board of the City of Charleston, West Virginia v. Scott Pruitt, et al., Civil Action No. 2:16-cv-03060 (March 29, 2018 Memorandum Opinion and Order) (Goodwin, J.). After two years of litigation (and more than four years of administrative proceedings prior to that), the Court determined that the decision of the West Virginia Department of Environmental Protection (WVDEP) to omit any limit on discharges of copper in the CSB’s most recent National Pollutant Discharge Elimination System (NPDES) permit rendered the CSB’s challenge to EPA’s action “either hypothetical or [lacking in] imminence.” As a result, the Court ruled there was no longer a justiciable “case or controversy” between the parties, depriving it of subject matter jurisdiction over the dispute.

The case centered on the WVDEP’s promulgation of statewide limits on allowable levels of copper in streams, acting pursuant to its delegated authority under the federal Clean Water Act (CWA). Using the general formula provided in its rules, the WVDEP translated these in-stream standards into specific effluent limits for copper when it issued a NPDES permit to the CSB in 2012. Recognizing that it could not operate in compliance with the assigned copper effluent limits, the CSB developed the necessary factual information and scientific rationale to support development of an alternative, facility-specific water quality standard (using a procedure known as a “water effects ratio” analysis) that would have allowed it to discharge copper in concentrations approximately five times higher than EPA’s nationally recommended criteria without harming the aquatic life the standard is designed to protect. …

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