June 3, 2024

Draft NPDES General Permit for Discharges of Stormwater Associated with Construction Activities (PAG-02)

Pittsburgh, PA and Washington, DC

The Foundation Water Law Newsletter

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

On March 9, 2024, the Pennsylvania Department of Environmental Protection (PADEP) announced the availability of its draft National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges of Stormwater Associated with Construction Activities (draft 2024 General Permit), which would apply to eligible projects proposing earth disturbance greater than or equal to one acre. See 54 Pa. Bull. 1263 (Mar. 9, 2024). PADEP accepted comments on the draft through April 8, 2024. PADEP’s draft 2024 General Permit includes significant changes compared to the PAG-02 General Permit currently in effect, set to expire on December 7, 2024 (2019 General Permit). To supplement these changes, PADEP is expected to update the Erosion and Sediment Module 1 and Post-Construction Stormwater Management (PCSM) Module 2 to be consistent with the draft 2024 General Permit upon reissuance.

The 2019 General Permit requires that proof of the recording of an instrument for post-construction stormwater management (PCSM) best management practices (BMPs), now referred to as stormwater control measures (SCMs), be submitted to PADEP or the County Conservation District (CCD) with the Notice of Termination (NOT) or a Transfer Application. The draft 2024 General Permit would require submission of the full recording and proof of the recording to PADEP before a pre-construction meeting is scheduled, as well as upon the submission of the NOT to ensure compliance. The draft 2024 General Permit would also require the use of a standard form to document the completion of each structural PCSM SCM, which must be signed by a licensed professional and submitted to PADEP or CCD within 30 days of completion of each SCM. …

June 3, 2024

Vermont Governor Allows Nation’s First Climate Change Cost Recovery Bill to Become Law Without Signature

Pittsburgh, PA and Washington, DC

Environmental Alert

(by Jean Mosites and Gina Buchman)

On May 30, 2024, Vermont Governor Philip Scott allowed S.259, An act relating to climate change cost recovery, to become law without his signature.  S. 259, entitled the Climate Superfund Act, will require the development of claims to shift the cost of alleged climate-related impacts in Vermont onto the companies that produced fossil fuels responsible for greenhouse gas (GHG) emissions.

This bill is the first of its kind to become law in the United States, and similar legislation is pending in Massachusetts, New York, and Maryland.  Borrowing some concepts from the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), or Superfund, which imposes strict liability for cleanup of contaminated sites on potentially responsible parties, this Act seeks to assign financial liability for climate-related impacts on the companies that extracted and refined petroleum products and other fossil fuels.  Like CERCLA, the Act imposes retroactive liability on entities having conducted lawful business activities in the past.

Vermont’s Act establishes a Climate Superfund Cost Recovery Program to be administered by the Climate Action Office of the Agency of Natural Resources.  The Vermont Treasurer will be required to assess the cost of GHG emissions to the state and its residents during the period January 1, 1995 through December 31, 2024.  The Agency of Natural Resources will apportion liability and make cost recovery demands to “Responsible Parties,” those entities engaged in the trade or business of extracting fossil fuel or refining crude oil responsible for more than one billion metric tons of covered greenhouse gas emissions during the covered period. …

May 30, 2024

Shapiro Administration Revises PPC Plan Policy to Require Operators to Disclose Drilling Chemicals

Pittsburgh, PA and Washington, DC

The Foundation Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(Joseph K. Reinhart, Sean M. McGovern, Gina F. Buchman, Matthew C. Wood)

On January 26, 2024, the Pennsylvania Department of Environmental Protection (PADEP) announced that it would implement a policy requiring natural gas well operators to disclose chemicals they use in drilling and hydraulic fracturing operations before the chemicals are used on-site. See Press Release, PADEP, “Shapiro Administration, DEP Requires All Fracking Companies to Be More Transparent About Chemicals Used in Drilling” (Jan. 26, 2024). To accomplish this, PADEP said it would revise the process by which an operator submits its site-specific preparedness, prevention, and contingency plan (PPC Plan). Regulations require that an operator prepare a PPC Plan before it stores, uses, or generates regulated substances on-site, but until this change, an operator was only required to submit its PPC Plan to PADEP upon request.

Now, PADEP’s policy is that operators must submit PPC Plans to the agency prior to conducting drilling operations so PADEP can post them online on its PA Oil and Gas Mapping website. PADEP has informed operators and industry groups of the change, and since January 3, 2024, has included the policy in cover letters attached to issued unconventional well permits. This change appears to respond to one of eight recommendations summarized in the report prepared by Pennsylvania’s 43rd Statewide Investigating Grand Jury on the unconventional oil and gas industry. See Office of the Att’y Gen., Commw. of Pa., Report 1 of the Forty-Third Statewide Investigating Grand Jury (June 2020). The grand jury was convened, and the PPC Plan policy subsequently implemented, under then-Attorney General and current Governor Josh Shapiro. …

May 30, 2024

PACER and PRESS Are Introduced in the Pennsylvania General Assembly

Pittsburgh, PA and Washington, DC

The Foundation Mineral and Energy Law Newsletter

Pennsylvania – Mining

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

Pennsylvania Governor Josh Shapiro recently announced two pieces of legislation as part of his “commonsense energy plan” that would replace state efforts to join the Regional Greenhouse Gas Initiative (RGGI): (1) the Pennsylvania Climate Emissions Reduction Act (PACER) and (2) the Pennsylvania Reliable Energy Sustainability Standard (PRESS). Press Release, Gov’r Josh Shapiro, “Governor Josh Shapiro’s Energy Plan Builds on Pennsylvania’s Legacy of Energy Leadership by Protecting and Creating Energy Jobs and Lowering Electricity Costs for Consumers” (Mar. 13, 2024). According to the Shapiro administration, these Pennsylvania-specific programs are aimed at reducing greenhouse gas emissions, lowering utility bills for consumers, and creating and protecting jobs in the Commonwealth.

PACER was introduced as House Bill 2275 by Representative Aerion Abney and as Senate Bill 1191 by Senator Carolyn Comitta on May 8, 2024, along with many cosponsors. The legislation proposes to establish a Pennsylvania-run CO2 Budget Trading Program with its own auction of CO2 allowances. The bill directs the Pennsylvania Department of Environmental Protection (PADEP) to administer this program in accordance with parts of the regulation promulgated to implement the commonwealth’s participation in RGGI, 25 Pa. Code ch. 145, subch. E (CO2 Budget Trading Program), with some changes. “Budget sources”—fossil fuel-fired electricity generators with a nameplate capacity of 25 MW or more—would be required to comply with the program under PACER and purchase allowances (authorization to emit one ton of VOCs) equal to the tons of CO2 emitted annually.

The legislation also directs PADEP to review the base budget—the number of allowances available for auction set in the CO2 Budget Trading Program regulation—and consider the impact of the budget on jobs, consumers, and the environment to determine whether revisions to the budget are necessary. …

May 24, 2024

FTC Publishes Non-Compete Ban, Legal Challenges Promptly Follow

Pittsburgh, PA

The Legal Intelligencer

(by Alex Farone)

On April 23, 2024, the Federal Trade Commission (FTC) voted 3-2 to publish its proposed final rule banning most noncompetition agreements, or “non-competes.” The final rule was published on May 7, 2024, in the Federal Register and therefore becomes effective 120 days later, on September 4, 2024, but legal challenges to the FTC’s authority to issue this ban will likely result in a stay in enforcement of the ban until litigation is resolved.

As of the effective date, the final rule would ban new non-competes with employees, independent contractors, and volunteers nationwide, on the basis that non-competes are an unfair method of competition and therefore a violation of Section 5 of the FTC Act, with one exception. The ban will not apply to a non-compete that is entered into pursuant to the bona fide sale of a business, the persona’s ownership interest in a business entity, or all (or substantially all) of a business entity’s operating assets.

The final rule will also void pre-existing non-competes, with two exceptions. First, existing non-competes for senior executives will remain enforceable after the effective date of the final rule. A “senior executive” is defined as a worker earning more than $151,164 annually who is in a policy-making position, meaning a company president, chief executive officer or equivalent, or any other person who has final authority to make policy decisions that control significant aspects of a business entity. Second, the ban will not apply to an existing non-compete that has been breached and where a cause of action accrued prior to the effective date.

The final rule will also require employers to provide “clear and conspicuous notice” to all workers, other than senior executives, with existing non-competes by the effective date stating that the non-compete will not be, and cannot legally be, enforced. …

May 22, 2024

Navigate the Current Uncertainty on FinCEN Matters

Pittsburgh, PA

Firm Alert

Babst Calland Stands Ready to Advise All Clients on FinCEN Matters – Let Us Help Your Company Navigate the Current Uncertainty

(by Chris Farmakis, Susanna Bagdasarova, Kate Cooper, and Dane Fennell)

As part of our commitment to keeping clients informed about regulatory changes that may impact their business, we want to draw your attention to the uncertainty surrounding the Financial Crimes Enforcement Network (FinCEN) Beneficial Ownership Information Reporting Rule (the “Rule”) under the Corporate Transparency Act (CTA). By now, you have likely heard about this Rule from your accountant or business colleagues. If not, the Rule requires most entities to disclose information about individuals who directly or indirectly own or control such entities. The intended purpose of the Rule is to enhance transparency and combat financial crimes by requiring certain covered entities to report information about their beneficial owners to FinCEN. Most entities in the U.S. will likely be required to comply with the Rule but some might be exempt if your entity meets one of the 23 identified exemptions. Entities formed before January 1, 2024, have until 2025 to comply; entities formed in 2024 have a 90-day compliance period. Pretty straight forward, right? NOPE, NOT AT ALL. The Rule is currently being challenged in the courts on constitutional grounds, and reporting requirements have been paused for certain entities following an injunction issued by the Northern District of Alabama on March 1, 2024, which ruled the CTA unconstitutional. Babst Calland is closely following these evolving developments. What should your company do in the meantime?

Given the legal uncertainty, many law firms and accounting advisors are declining to advise their clients on their compliance obligations. …

May 17, 2024

U.S. Environmental Protection Agency Finalizes National Primary Drinking Water Regulations for Certain PFAS Chemicals

Pittsburgh, PA

PIOGA Press

(by Jean Mosites and Mackenzie Moyer)

On April 10, 2024, the U.S. Environmental Protection Agency (EPA) finalized the National Primary Drinking Water Regulation (NPDWR) Rule regulating six per- and polyfluoroalkyl substances (PFAS) under the Safe Drinking Water Act, 42 U.S.C. §§ 300f et seq.  This final rule establishes the first-ever nationally enforceable drinking water standards for PFAS.  The final rule establishes Maximum Contaminant Level Goals (MCLGs) and Maximum Contaminant Levels (MCLs) for perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid and its ammonium salt (HFPO-DA, commonly known as GenX chemicals), and perfluorohexane sulfonic acid (PFHxS).  The final rule also establishes a Hazard Index MCLG and MCL for mixtures containing two or more of PFNA, HFPO-DA, PFHxS, and perfluorobutane sulfonic acid (PFBS).

For PFOA and PFOS, the final rule sets MCLGs – non-enforceable health-based goals that represent the maximum concentration of a contaminant in drinking water at which there is no known or anticipated negative effect on a person’s health – at 0 parts per trillion (ppt).  The MCLs, which are legally enforceable, are set at 4.0 ppt for PFOA and PFOS.  The MCLs represent the maximum concentrations allowed in drinking water that can be delivered to users of a public water system and are informed by factors such as available treatment technologies and cost.  As a change from the proposed rule, the final rule sets MCLGs and MCLs for PFNA, PFHxS, and HFPO-DA at 10 ppt.

For mixtures of two or more of PFNA, PFHxS, HFPO-DA, and PFBS, the final rule establishes a Hazard Index due to the chemicals’ likely co-occurrence.  The Hazard Index is calculated by dividing the concentration of each of the four PFAS compounds by its Health-Based Water Concentration (HBWC; …

May 17, 2024

FTC Finalizes Non-Compete Ban, Legal Challenges Promptly Follow

Pittsburgh, PA

TEQ Hub

(by Alex Farone)

On April 23, 2024, the Federal Trade Commission (FTC) voted 3-2 to publish its proposed final rule banning most noncompetition agreements, or “non-competes.” The final rule was published on May 7, 2024 in the Federal Register and becomes effective on September 4, 2024, but legal challenges to the FTC’s authority to issue this ban will likely result in a stay in enforcement of the ban until litigation is resolved.

As of the effective date, the final rule would ban new non-competes with employees, independent contractors, and volunteers nationwide, on the basis that non-competes are an unfair method of competition and therefore a violation of Section 5 of the FTC Act, with one exception. The ban will not apply to a non-compete that is entered into pursuant to a bona fide sale of a business entity, the persona’s ownership interest in a business entity, or all or substantially all of a business entity’s operating assets.

The final rule will also void pre-existing non-competes, with two exceptions. First, existing non-competes for senior executives will remain enforceable after the effective date of the final rule. A “senior executive” is defined as a worker earning more than $151,164 annually who is in a policy-making position, meaning a company president, chief executive officer or equivalent, or any other person who has final authority to make policy decisions that control significant aspects of a business entity. Second, the ban will not apply where an existing non-compete has been breached and a cause of action accrued prior to the effective date.

The final rule will additionally require employers to provide “clear and conspicuous notice” to all workers, other than senior executives, with existing non-competes by the effective date stating that the non-compete will not be, and cannot legally be, enforced. …

May 16, 2024

Pennsylvania Climate Emissions Reduction Act (PACER) Retains Key Aspects of the RGGI Regulation

Pittsburgh, PA

Environmental Alert

(by Kevin Garber)

On May 8, 2024, a large group of Democrat members of the Pennsylvania House of Representatives introduced H.B. 2275, the Pennsylvania Climate Emissions Reduction Act, into the General Assembly. The Shapiro administration announced PACER earlier this year as an approach to creating a Pennsylvania-specific carbon reduction program instead of joining the Regional Greenhouse Gas Initiative. The actual language of the bill unsurprisingly retains key aspects of the RGGI regulation that the Environmental Quality Board promulgated on April 23, 2022. The Commonwealth Court declared that regulation void on November 1, 2023 as being an unconstitutional tax and enjoined the Pennsylvania Department of Environmental Protection from enforcing it. However, the Court’s decision does not remove the regulation from existence.

As proposed, PACER directs DEP, within 120 days of enactment, to review the base CO₂ allowance budget of 78 million tons that DEP established in the RGGI regulation in 2022 (which declines to 58 million tons in 2030) and recommend revisions to that budget, if necessary, after considering the effect of a new base budget on jobs, consumers, and the environment. DEP is not given specific authority to consider how a revised CO₂ budget would affect the reliability of the PJM grid or the potential for emission leakage outside Pennsylvania.[1] These were two of the biggest industry objections to the RGGI regulation during its development.

After DEP develops a revised CO₂ budget, the EQB would promulgate a final base budget by adopting a final-omitted regulation (a procedure that removes otherwise applicable public notice and comment opportunities), after which DEP would conduct a Pennsylvania-run auction of CO₂ allowances using the procedure already established by the RGGI regulation. …

May 6, 2024

‘Another tool on your belt’: Pittsburgh cops embrace jiu jitsu training

Pittsburgh, PA

TRIBLive

(by Justin Vellucci)

For Tim Novosel, Brazilian jiu jitsu is more about control than contact.

The Pittsburgh police commander — who launched a jiu jitsu training program for city cops about two years ago — talked about the importance the martial art places on focus instead of force. Nearby, a dozen officers grappled nearby on an ocean of blue mats in Pittsburgh police’s North Side training academy.

The officers’ limbs — each cloaked in a navy-blue gi, a robe-style top that’s part of jiu-jitsu’s uniform — furled around each other trying to gain an upper hand. Trainers in black gi leaned in periodically to help officers with dominant positions or demonstrate how to master moves like the Triangle Choke.

“It’s like human chess, it’s such a thinking man’s sport,” said Novosel, 51, a North Side native who took over leadership in February of Pittsburgh’s Zone 2 station, which covers Downtown. “You’re always examining the body and seeing how you can fit.”

“I’m passionate about it because it you came and told me, ‘Patrol over there,’ I’d rather go out without my gun than without my jiu jitsu,” he added. “It’s another tool on your belt.”

A couple of generations ago — long before Novosel joined the Pittsburgh force in 2007 — cops trained by boxing, the commander told TribLive.

Today, he said, Pittsburgh police integrate Brazilian jiu jitsu into teaching recruits the bureau’s defensive tactics — and keeping more tenured officers fit and focused.

About 120 officers — three of them women — have taken part in the bureau’s voluntary jiu jitsu training, with 50 coming to sessions regularly. …

Blurred Lines: The Ongoing Battle Between iLottery and iGaming

April 30, 2024

Harrisburg, PA

The Legal Intelligencer

(by Casey Alan Coyle and Michael Libuser)

Online gaming is a booming industry.  In fiscal year 2022–23, the Pennsylvania Lottery’s iLottery program generated $872.5 million in eInstant sales, while online gambling revenues topped $2 billion in Pennsylvania last year according to published reports.  But behind the scenes, a dispute has arisen that pits the Pennsylvania Lottery against privately owned casinos.  The fight is over legislation that prohibits the Pennsylvania Department of Revenue (the “Department”), the administrator of the Lottery, from offering products that “simulate casino-style lottery games” as part of the iLottery program.  The Pennsylvania Supreme Court recently construed the meaning of that phrase in Greenwood Gaming & Entertainment, Inc. v. Department of Revenue, 306 A.3d 319 (Pa. 2023), and remanded the case to the Commonwealth Court with instructions to apply a corresponding standard.  The question now is whether, and to what extent, the Commonwealth Court will be able to establish a boundary between iLottery games and the online products offered by casinos.

Act 42

On March 15, 1972, the Pennsylvania Lottery sold its first ticket for a weekly drawing.  The Lottery, then only a year into its existence, operated without competition and continued to do so for decades.  Over the years, with the rising popularity of Lottery games, including now-ubiquitous “scratch-offs,” came a tide of competition and technology that shepherded in a new legislative era for Pennsylvania gambling rules.  First came the Race Horse Development and Gaming Act (the “Gaming Act”), which authorized slot machines.  Six years later, the Legislature expanded the Gaming Act to include table games.  Then, in 2014, the General Assembly amended the State Lottery Law (the “Lottery Law”) to prohibit the Department from offering “[i]nternet instant game[s]” and “simulated casino-style lottery game[s]” through the Lottery, absent further legislative authorization. …

April 29, 2024

EPA Finalizes Rule Expanding Federal CCR Program

Pittsburgh, PA

Environmental Alert

(by Donald C. Bluedorn II, Gary E. Steinbauer, and Mackenzie M. Moyer)

On April 25, 2024, the U.S. Environmental Protection Agency (EPA) finalized changes to the coal combustion residuals (CCR) regulations to now regulate inactive surface impoundments at inactive electric utilities, known as legacy CCR surface impoundments. The Final Rule also imposes requirements on an additional, new category of CCR units, known as CCR management units, or CCRMUs. Regulated legacy CCR surface impoundments will need to comply with the requirements in Subpart D, as articulated in the Final Rule, beginning as early as six months after the date of publication of the Final Rule in the Federal Register and CCRMUs will need to comply with specified requirements beginning 21 months after publication.

The Final Rule is being promulgated in response to the August 21, 2018 opinion by the U.S. Court of Appeals for the District of Columbia Circuit in Utility Solid Waste Activities Group, et al. v. EPA, in which the Court vacated and remanded the provision of the 2015 CCR Rule that exempted inactive impoundments at inactive facilities from regulation. EPA is also expanding the CCR Rule to address CCRMUs due to the associated risks from the direct placement of CCR on the land; according to information obtained from EPA since 2015, these previously unregulated units are contaminating groundwater and pose risks similar to the risks associated with currently regulated activities. In the last year, EPA has focused on CCR Rule enforcement, adding “protecting communities from coal ash contamination” as one of EPA’s six National Enforcement and Compliance Initiatives for fiscal years 2024 through 2027. …

April 25, 2024

FTC Finalizes Non-Compete Ban, Legal Challenges Promptly Follow

Pittsburgh, PA

Employment and Labor Alert

(by Alex Farone)

On April 23, 2024, the Federal Trade Commission (FTC) voted 3-2 to publish its proposed final rule banning most noncompetition agreements, or “non-competes.” The final rule becomes effective 120 days after its date of publication in the Federal Register, but legal challenges to the FTC’s authority to issue this ban will likely result in a stay in enforcement of the ban until litigation is resolved.

As of the effective date, the final rule would ban new non-competes with employees, independent contractors, and volunteers nationwide, on the basis that non-competes are an unfair method of competition and therefore a violation of Section 5 of the FTC Act, with one exception. The ban will not apply to a non-compete that is entered into pursuant to a bona fide sale of a business entity, the persona’s ownership interest in a business entity, or all or substantially all of a business entity’s operating assets.

The final rule will also void pre-existing non-competes, with two exceptions. First, existing non-competes for senior executives will remain enforceable after the effective date of the final rule. A “senior executive” is defined as a worker earning more than $151,164 annually who is in a policy-making position, meaning a company president, chief executive officer or equivalent, or any other person who has final authority to make policy decisions that control significant aspects of a business entity. Second, the ban will not apply where an existing non-compete has been breached and a cause of action accrued prior to the effective date.

The final rule will additionally require employers to provide “clear and conspicuous notice” to all workers, other than senior executives, with existing non-competes by the effective date stating that the non-compete will not be, and cannot legally be, enforced. …

April 24, 2024

EPA Designates Two PFAS as CERCLA Hazardous Substances and Issues Related Enforcement Policy Focused on “Major PRPs”

Pittsburgh, PA

Environmental Alert

(by Matt Wood and Jean Mosites)

On April 17, 2024, the U.S. Environmental Protection Agency (EPA) released a pre-publication version of its long-anticipated final rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), and their salts and structural isomers, as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  The final rule will be effective 60 days after publication in the Federal Register.  PFOA and PFOS are the two most prominent and studied compounds in a “family” of per- and polyfluoroalkyl substances (PFAS) consisting of thousands of manmade chemicals.  PFAS have been widely used for decades in various applications, including manufacturing water-, stain-, and heat-resistant consumer products, e.g., waterproof clothing and food packaging, and as ingredients in aqueous film forming foams (AFFF) used to extinguish certain kinds of chemical fires.  Research indicates that exposure to PFAS, which are prevalent and persistent in the environment, may cause various health-related impacts.

EPA’s designation of PFOA and PFOS as CERCLA hazardous substances is unprecedented and not uncontroversial because it is the first time the agency has made such designations using its authority under CERCLA Section 102, 42 U.S.C. § 9602.  Until now, CERCLA has always defined hazardous substances by reference to other statutes (e.g., the Clean Water Act and the Resource Conservation and Recovery Act).  To reach its conclusion that the designations were warranted, EPA says it evaluated available scientific and technical information about PFOA and PFOS to determine whether they “may present a substantial danger to public health welfare or the environment” as contemplated by CERCLA section 102(a).  EPA also conducted a “totality of the circumstances” analysis considering multiple factors, including benefits versus costs.  …

April 19, 2024

EPA Agrees to Impose Novel Water Quality Requirements for West Virginia Streams

Charleston, WV

Environmental Alert

(by Kip Power and Robert Stonestreet)

The federal Environmental Protection Agency (EPA) has agreed to impose novel water quality requirements for West Virginia streams to resolve a lawsuit filed by multiple environmental advocacy organizations.  On March 18, 2024, the Sierra Club, the West Virginia Highlands Conservancy, and the West Virginia Rivers Coalition (Plaintiffs) filed a lawsuit against EPA in the U.S. District Court for the Southern District of West Virginia (at Huntington). The suit alleges that EPA has improperly failed to take action under the federal Clean Water Act with respect to certain “biologically impaired” streams located in the Lower Guyandotte River Watershed in West Virginia. Specifically, Plaintiffs assert that because the West Virginia Department of Environmental Protection (WVDEP) has failed to do so, EPA must step in and develop pollution reduction plans (known as “total maximum daily loads” or “TMDLs”) for those streams.

However, rather than seek to reduce levels of conventional pollutants (e.g., iron, aluminum, etc.), the lawsuit addresses the concentration of dissolved minerals in the water (often referred to as “total dissolved solids” or conductivity). According to the Plaintiffs, certain levels of conductivity lead to an adverse impact (known as “ionic toxicity”) on specific species of aquatic life. Neither West Virginia nor EPA has developed a specific water quality standard for total dissolved solids or conductivity. A wide range of activities can affect conductivity levels of a stream, including wastewater treatment and earth disturbances associated with construction activities or mining. Naturally occurring conductivity levels can also vary widely among different streams.

About 10 days after the suit was filed, Plaintiffs and EPA announced a settlement, in the form of a proposed Consent Decree (CD). …

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