The PIOGA Press
On March 17, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) released a pre-publication version of its long-awaited notice of proposed rulemaking (NPRM) for gas transmission and gathering pipelines. Under development for more than four years, the NPRM proposes significant changes to the regulations for gas pipeline facilities in 49 C.F.R. Part 192.
Marcellus Business Central
On March 17, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) proposed new regulations to update critical safety requirements for natural gas pipelines. The prior legislation, the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, expired at the end of FY 2015 but called for PHMSA to evaluate the need for additional damage prevention and inspection regulations.
The 549-page, pre-publication edition of the proposed regulations for gas transmission and gathering lines took over four years to make and includes four congressional mandates, one recommendation from GAO, and six recommendations from the National Transportation Safety Board (NTSB).
PHMSA’s new proposals include a climate action plan to reduce methane emissions and inspections for previously exempt gas pipelines built before 1970, such as the PG&E pipeline that exploded and started fires in San Bruno, CA in 2010, killing eight people and leveling 35 houses, and the pipeline explosion in 2011 in Allentown, Pa., which killed five people including a 4-month-old child. Both explosions were caused by leaks from old cast-iron natural gas distribution pipelines. NTSB’s investigation of the PG&E natural gas pipeline failure concluded that hydrostatic testing of grandfathered pipelines would have likely have prevented the explosion.
The proposed regulations would also broaden the scope of safety coverage by adding new assessment and repair criteria for gas transmission pipelines, including pipelines that pass through areas of medium population density where a failure could pose a serious risk to residents.
The significant growth in the nation’s production, usage and commercialization of natural gas is placing unprecedented demands on the nation’s pipeline system,” said U.S. Transportation Secretary Anthony Foxx.
“This proposal includes a number of commonsense measures that will better ensure the safety of communities living alongside pipeline infrastructure and protect our environment.”
The U.S. …
Pittsburgh Business Times
On March 17, 2016, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) released a long-awaited rulemaking proposal that could have a dramatic impact on the gas pipeline industry. More than four years in the making, the proposed rules would make significant changes to PHMSA’s pipeline safety standards by imposing new requirements for gas transmission and gathering lines. This ambitious proposal, issued in the waning days of the Obama Administration, seeks to address a number of issues raised by the Congress, other federal agencies, and the rapid development of energy infrastructure in the nation’s shale plays, particularly in the Marcellus and Utica regions.
Breaking Ground
On three different occasions over the past year, the Pennsylvania appellate courts have recently elaborated on the potentially broad reach of negligent misrepresentation claims a contractor may have against a design professional for a faulty design, despite the absence of a contract between them.
Natural Gas Intelligence
One week after the Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a pre-publication version of proposed rules governing natural gas transmission and gathering lines, experts agree that it will take some time for producers, pipeline companies, trade associations, state regulators and other stakeholders to sort through the federal agency’s proposals.
But early indications are that stakeholders will focus on the cost of implementing the proposed new rules, and determining how they affect existing state and federal regulations.
Employment Bulletin
February 25, 2016 the United States Department of Labor (DOL) published a notice of proposed rule making to implement Executive Order 13706 (found at: https://www.gpo. gov/fdsys/pkg/FR-2015-09-10/pdf/2015-22998.pdf), “Establishing Paid Sick Leave for Federal Contractors,” which requires certain federal contractors to provide their employees with up to seven days of paid sick leave annually, including paid leave allowing for family care (the “Proposed Rule”).
The 80-page proposal (found at: https://www.gpo.gov/fdsys/pkg/FR-2016-02-25/ pdf/2016-03722.pdf) will only be open for public comment through March 28, 2016. Thus, contractors or other interested parties are encouraged to act quickly if they wish to provide the agency with comments before the rule is finalized. To aid in this process and to preview the requirements soon to be imposed on federal contractors, we are providing an overview of the proposal’s key provisions.
Contracts Covered. The Proposed Rule lists four major contract categories to which the executive order applies: (1) procurement contracts for construction covered by the Davis-Bacon Act (the “DBA”), (2) services contracts covered by the McNamara-O’Hara Service Contract Act (the “SCA”), (3) concessions contracts, and (4) contracts in connection with federal property or lands and related to offering services for federal employees or the public. The Proposed Rule states the Order does not apply to contracts worth $3,000 or less, where wages are governed by the Fair Labor Standards Act (the “FLSA”) – nor will it apply to contracts for the manufacturing or furnishing of materials, supplies or equipment.
The rule will apply to new contracts or replacements for expiring contracts with the federal government that result from solicitations issued on or after January 1, 2017. And the “contractors” covered by the rule include not only the prime contractor, but “all of its subcontractors of any tier on a contract with the Federal Government.”
Employees Covered. …
Pipeline Safety Alert
On March 17, 2016, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a pre-publication version of its long-awaited notice of proposed rulemaking (NPRM) for gas transmission and gathering lines. More than four years in the making and released against the backdrop of a dramatically changing domestic landscape for the natural gas pipeline industry, the NPRM responds to issues raised in National Transportation Safety Board (NTSB) recommendations, congressional mandates, and Government Accountability Office reports. PHMSA has provided a short, 60-day comment period, which will be a challenge to those developing comments on a proposed rule of this complexity and length. It is likely that a number of stakeholders will seek an extension of the comment period. While a comprehensive analysis of the 549-page proposal will take more time, Babst Calland’s Pipeline and HazMat Safety team has initially identified five questions that operators may wish to ask about the NPRM.
The American Oil & Gas Reporter
PITTSBURGH—Managing flowback, produced fluids, and other oil and gas wastewater continues to be a significant industry concern in light of ongoing federal and state regulatory activity.
In the Appalachian Basin’s Marcellus Shale play, this is being exacerbated as a result of fewer newly drilled wells being available to reuse flowback and produced fluids because of low gas prices.
PIOGA Press
The power of a private company to exercise eminent domain is delegated by state and federal governments. There are two forms of condemnation which may be used to obtain private property for natural gas pipelines and other midstream facilities. Under a “straight condemnation,” the action is initiated in court by the filing of a complaint, proceeds in due course to the determination of just compensation and upon payment of just compensation the condemnor takes possession of the property. The second method of condemnation, commonly referred to as a “quick take,” allows the condemnor to file a “declaration of taking,” deposit the estimated compensation with the court and upon court order title to the condemned property automatically vests in the condemnor. Pennsylvania statutory law provides for both straight and quick take condemnations. Under federal law, however, the more expeditious quick take procedure is prescribed in the Declaration of Taking Act (DTA) and is available only in condemnation proceedings “brought by and in the name of the United States.” Therefore, the quick take authority granted by the DTA is unavailable to private companies. With traditional straight condemnation being the only course available to private companies under federal law, an issue that is often litigated in such actions is whether a company can gain possession of the property before the issue of just compensation is tried. The timing of possession is a critical consideration in the taking of a pipeline right-of-way because pipeline projects are often subject to strict deadlines and construction depends on many factors, including weather and environmental impacts. However, the ability of a company to acquire access to property prior to the payment of just compensation depends upon whether state or federal law governs the condemnation action.
The PIOGA Press
On February 5, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) published an advisory bulletin in the Federal Register on the safety of underground gas facilities. 81 Fed. Reg. 6334-6336. Citing several incidents at underground gas storage facilities, including the ongoing natural gas leak at a facility in the Porter Ranch area of Los Angeles, California, PHMSA’s advisory bulletin recommends operators of these facilities take measures to ensure public safety and the protection of the environment.
Pennsylvania Business Central
For more than 20 years, the Pennsylvania Business Central has entered the new year by celebrating the top 100 people in its expanding readership that have accomplished both personal and financial success with an honest sense of direction imbued in them by mentors, personal experiences, failures and successes.
The Legal Intelligencer
(by Blaine Lucas and Alyssa Golfieri)
In an effort to provide better safeguards to surface and mineral rights owners who might not otherwise become aware of proposed municipal actions that could affect their property interests, such as a municipality’s consideration and adoption of a new zoning ordinance or zoning ordinance amendment, Gov. Tom Corbett signed Act 36 of 2013 into law July 2, 2013. Act 36, which took effect Aug. 31, 2013, amended the Pennsylvania Municipalities Planning Code to add a requirement that municipalities provide “mailed notice” or “electronic notice” of public hearings concerning proposed zoning ordinances and zoning ordinance amendments to the owners of tracts or parcels of land or the owners of mineral rights in tracts or parcels of land located within their borders upon request by those owners.
Prior to the enactment of Act 36, the MPC imposed upon municipalities a number of notice and distribution requirements for the adoption of land use ordinances. For zoning ordinances and zoning ordinance amendments, these requirements included: (1) a public hearing; (2) publication of notice of the hearing for two successive weeks in a newspaper of general circulation in the municipality, with the first publication being no more than 30 days and the second publication being no less than seven days from the date of the hearing; (3) publication of notice of the proposed enactment of the ordinance at least once no more than 60 nor less than seven days prior to passage, with either publication of the full text or a summary of the proposed ordinance, in which case copies also must be provided to the newspaper publishing the notice and to the county law library; (4) transmittal of a copy to the county planning agency for review and comment at least 30 days prior to the public hearing; …
Pittsburgh Tribune Review
Seven months of sometimes-contentious meetings by a statewide task force focused on the expanding network of gas pipelines generated a starting point for debate but no binding directives.
“It’s not meant to be the final word but a start of a conversation,” Department of Environmental Protection Secretary John Quigley said Thursday about the final report issued by the Pipeline Infrastructure Task Force he chaired.
The report includes 184 suggestions for streamlining the permit process, improving safety, ensuring environmental protection around pipelines and easing the growing strain between pipeline builders and community leaders. The industry needs additional pipeline as it produces more gas from Marcellus and Utica shale, but a complex permitting process and community opposition are slowing the buildout, Quigley acknowledged.
Seven task force meetings were punctuated by protests, arrests of environmentalists and frustration voiced by some members about how the report would be presented.
Because some of the suggestions faced opposition from within the task force, its 48 members chosen by Gov. Tom Wolf voted on the top 12 recommendations for further consideration. They include encouraging pipeline companies to meet earlier and more often with communities, more training for emergency responders, expanding agency staffing and expanding oversight of smaller gathering lines under the state’s one-call system.
The task force, which delivered its report to Wolf for consideration, said thousands of miles of pipelines are planned. Inadequate infrastructure has contributed to a supply glut in the region that is pushing down prices.
The report identifies appropriate agencies to review each suggestion but requires no action.
The Public Utility Commission, which is seeking to take over operation of the one-call system, and the Pennsylvania Energy Infrastructure Alliance commended the report. …
The Legal Intelligencer
Employment law does not adhere to the biblical injunction that “No servant can serve two masters …” Under many regulatory schemes the law recognizes that two (or more) employers may owe legal duties to a single employee. Many businesses have decreased their direct employee head count by relying upon staffing firms to provide temporary employees, or outsourcing certain functions entirely. The National Labor Relations Board, or NLRB, and the Wage Hour Division, or WHD, of the United States Department of Labor have announced new rules applicable to their review of the joint employment issues created by these changes. These new rules will expand application of traditional labor and employment laws to businesses that do not consider themselves to be the “employer” of temporary or contracted employees.
NLRB’s Treatment of Joint Employers
In Boire v. Greyhound, 376 U.S. 473, 481 (1964), the state Supreme Court held that common law concepts of employment were intended to define the employment relationship under the National Labor Relations Act, and endorsed the NLRB’s theory that two statutory employers could jointly employ a single workforce if both “possessed sufficient control over the work of the employees.” At a later stage of the case, the NLRB held that joint employer status was demonstrated by proof that two separate employers “shared, or codetermined, those matters governing essential terms and conditions of employment ….” The U.S. Court of Appeals for the Third Circuit ultimately endorsed the NLRB’s Greyhound joint employer analysis in NLRB v. Browning-Ferris Industries of Pennsylvania, 691 F.2d 1117 (3d Cir. 1982), enf’g, 259 NLRB 148 (1981). There, the court stated that: The basis of the [joint employer] finding is simply that one employer while contracting in good faith with an otherwise independent company, has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer… Thus, the “joint employer” …
Pittsburgh Tribune Review
The decline in shale gas drilling in Pennsylvania prompted some law firms to dial back practice areas they formed to serve the industry during the past few months.
Downtown-based Babst Calland is instead expanding, opening a Washington office — its sixth location — with two lawyers handling issues involving energy, pipeline safety and hazardous materials.
Managing shareholder Chester R. “Chip” Babst III, one of the lawyers who founded the firm in 1986, said the move fits with its focus on environmental and regulatory law. Babst, 68, a fifth-generation Pittsburgher, spoke with the Tribune-Review about the expertise he and the firm built around an ever-changing regulatory environment.