Articles, Alerts & Perspectives

Pittsburgh, PA and Washington, DC

The Foundation Water Law Newsletter

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

On January 18, 2024, the Pennsylvania Department of Environmental Protection (PADEP) presented the final version of the technical guidance document on using trenchless technology to construct natural gas pipelines, other pipelines, and underground utilities to the PADEP Water Resources Advisory Committee. See PowerPoint Presentation, PADEP, “Trenchless Technology Guidance: Environmental Considerations for the Construction and Operation of Trenchless Technology” (Jan. 18, 2024). The final guidance was published in the Pennsylvania Bulletin in late February. See 54 Pa. Bull. 1017 (Feb. 24, 2024). Development on the guidance began in 2018 due to a stakeholder workgroup required as part of a PADEP settlement with the Clean Air Council, the Delaware Riverkeeper Network, and the Mountain Watershed Association regarding PADEP-issued permits for the Mariner East II Pipeline Project.

The final guidance, entitled “Trenchless Technology Guidance,” PADEP Doc. No. 310-2100-003, outlines the steps that proponents of projects using trenchless technology should consider. Trenchless technology is defined as “[a] type of subsurface construction work that requires few trenches or no trenches which includes any trenchless construction methodology, including, but not limited to: horizontal directional drilling, guided auger bore, cradle bore, conventional auger bore, jack bore, hammer bore, guided bores, and proprietary trenchless technology.” Id. at 6. Trenchless technology is often considered a less environmentally impactful alternative to other types of construction. Id.

Under the Guidance, each project should evaluate the “suitability, feasibility, and environmental considerations” of using trenchless technology methods, depending on the level of environmental risk. Id.  …

Pittsburgh, PA and Washington, DC

The Foundation Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

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

The Pennsylvania Department of Environmental Protection (PADEP) recently announced the availability of over $101.1 million in funding for 16 environmental restoration projects across 12 Pennsylvania counties as part of PADEP’s AML/AMD Grant Program. See Press Release, PADEP, “The Shapiro Administration Awards $101.1 Million in Grants for Environmental Restoration Projects” (Jan. 17, 2024). This funding comes from the Biden administration’s Bipartisan Infrastructure Law, through which Pennsylvania expects to receive $244.9 million annually until 2036. These projects focus on reclaiming abandoned mine lands and decreasing or treating abandoned mine drainage.

Pennsylvania’s AML/AMD Grant Program will have three application rounds in 2024 for new projects:

• 2024 Application Round 1—February 19, 2024, through 11:59 p.m. April 5, 2024
• 2024 Application Round 2—June 3, 2024, through 11:59 p.m. July 19, 2024
• 2024 Application Round 3—September 23, 2024, through 11:59 p.m. November 8, 2024

Program guidance and application instructions are available on PADEP’s website, as well as annual summaries of the accomplishments of abandoned mine reclamation projects in Pennsylvania. See PADEP, “AML/AMD Grant Program,” here.

PADEP Issues Draft 2024 Pennsylvania Integrated Water Quality Report
In November 2023, the Pennsylvania Department of Environmental Protection (PADEP) issued its draft interactive 2024 Pennsylvania Integrated Water Quality Report and the public comment on the draft report has now closed. The report identifies Pennsylvania’s federal Clean Water Act (CWA) § 303(d) listing of impaired waters requiring total maximum daily loads (TMDLs), and section 305(b) reporting of the overall condition of Pennsylvania’s aquatic resources. …

Pittsburgh, PA

PIOGA Press

(By Gary Steinbauer and Christina Puhnaty)

On December 2, 2023, the U.S. Environmental Protection Agency (EPA) released a pre-publication version of its final Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review (Final Rule). The Final Rule comes more than two years after EPA published its initial proposal on November 15, 2021 (Initial Proposal) and a supplemental proposal on December 6, 2022 (Supplemental Proposal) (collectively, the “Proposals”). According to EPA, the agency received over one million comments on the Proposals. (For information on the Proposals, please see our November 11, 2021 and December 12, 2022 articles.) This Alert focuses on critical aspects of the Final Rule, including key changes that EPA made since issuing the Proposals.1 

Brief Overview of Methane Rule

The Methane Rule is comprised of four separate actions proposed under sections 111(b) and 111(d) of the Clean Air Act. EPA currently regulates emissions of volatile organic compounds (VOCs) and methane from oil and natural gas facilities under 40 C.F.R Part 60 Subparts OOOO2 and OOOOa3. First, through this Final Rule, EPA will regulate oil and natural gas facilities constructed, modified, or reconstructed after December 6, 2022, under a new Subpart OOOOb. The requirements in OOOOb will apply to affected facilities 60 days after the rule is published in the federal register. Second, under a new Subpart OOOOc, EPA finalized emissions guidelines that are intended to inform states in the development, submittal, and implementation of state plans to establish standards of performance for greenhouse gases (in the form of limitations on methane) from sources existing on or before December 6, 2022. …

Pittsburgh, PA

The Legal Intelligencer

(by Michael Korns and Anna Hosack)

Last spring, the Pennsylvania Supreme Court addressed the question of who is entitled to standing in matters before a municipal zoning hearing board, and more importantly, who has standing to file an appeal from a board decision.  In South Bethlehem Assocs., LP v. Zoning Hearing Bd. of Bethlehem Twp., 294 A.3d 441 (Pa. 2023), the Pennsylvania Supreme Court held in a three-two decision that while the Municipalities Planning Code, 53 P.S. § 10101 et seq., (the “MPC”), allows the Board wide latitude to grant party status, a grant of standing by the Board does not automatically convey appellate rights absent a finding that the party is entitled to judicial review under the Local Agency Law, 2 Pa.C.S. § 105 et seq., only if they qualify under the “aggrieved party” standard, which requires that they had suffered a harm to an interest that the law is intended to protect.  However, this was a narrow decision, and the dissenters would allow any grant of party status by the Board to also grant appellate standing.  The result would be a dramatic relaxation of appellate standing requirements in zoning hearing board cases.

In South Bethlehem Assocs., the Applicant, a hotel owner, applied to the Zoning Hearing Board of Bethlehem Township (“ZHB”) and requested a dimensional variance.  At the public hearing before the ZHB, counsel for a business competitor of the Applicant appeared and claimed party status by signing in on the provided form as an objector.  The Applicant objected to the Objector’s participation because the Objector’s hotel was outside of the four-hundred-foot radius required for formal notice of the hearing.  …

Charleston, WV

The Wildcatter

(By Nikolas Tysiak)

Happy New Year! After a hiatus, we are back with new laws and cases for your information.

In Nicholson v. Severin POA Group, LLC, 895 S.E.2d 927 (W. Va. I.C.A. 2023), the West Virginia intermediate court of appeals was asked to interpret the meaning of an oil and gas reservation in a Doddridge County deed. The original deed involved a conveyance from F. W. Severin to L. D. Nicholson for 117.55 acres, excepting and reserving “one-sixteenth of all the oil and gas in and under said land.” In 2022, this language gave rise to a dispute as to whether Severin retained a 1/16 interest in oil and gas, or a ½ interest in oil and gas. After reviewing several older cases involving different iterations of oil and gas reservations, most of which involved either fractional splits between oil and gas rights (i.e., 1/16 oil and ½ gas) or referenced royalty as to the oil, gas, or both, the intermediate court determined the language of Severin’s reservation did not include the same factors creating ambiguity, that the Severin reservation was therefore not ambiguous, and concluded that Severin, and his successors in title, only retained an undivided 1/16 interest in oil and gas, based on the unambiguous language of the original deed.

In DD Oil Company v. State ex rel Ward, — S.E.2d —, 2023 WL 8588491 (W. Va. I.C.A.), DD Oil Company had permits to drill several wells in Ritchie County. The West Virginia Department of Environmental Protection (WVDEP) issued violations against DD Oil, which required DD Oil to cease all drilling operations and caused a protracted administrative and judicial review process. More than a year after the initial notice of violation, and after expiration of all the permits issued to DD Oil, WVDEP withdrew its notice of violation. …

Charleston, WV

GO-WV

(by Robert Stonestreet and Austin Rogers)

A federal appeals court has instructed a lower court to resolve a pending suit challenging the constitutionality of West Virginia’s oil and gas pooling and unitization law.  The federal district court previously declined to resolve certain constitutional issues presented in the suit on the grounds that those issues should be decided by a state court instead of a federal court.

In 2022, the West Virginia Legislature enacted Senate Bill 694 to revise West Virginia law governing the pooling and unitization of oil and gas formations associated with horizontal well development.  Pooling and unitization essentially involves combining separately owned properties into a single “unit” through which one or more horizontal wells are drilled.  The oil and gas produced from the horizontal well is then allocated among all the properties in the unit for purposes of calculating production royalties payable to the mineral owners.

Prior to Senate Bill 694 becoming effective on June 7, 2022, formation of a pooled unit for a horizontal well drilled through “shallow” oil and gas formations, which includes the Marcellus Shale, required consent of 100% of the mineral owners for all the properties to be included in the unit.  This 100% consent requirement did not apply to horizontal wells drilled through “deep formations” such as the Utica Shale.  One of the more significant changes made by SB 694 was to allow the West Virginia Oil and Gas Conservation Commission to approve units for shallow formations where at least 75% of the mineral owners consent, provided other requirements are also satisfied.  This means that up to 25% of a unit could potentially include properties for which the mineral owner did not consent to being part of a unit. …

Pittsburgh, PA and Harrisburg, PA

Legal Intelligencer

(by Carla Castello and Casey Alan Coyle)

Few concepts are more steeped in Pennsylvania law than the doctrine of forum non conveniens.  Memorialized in Pennsylvania Rule of Civil Procedure 1006, the doctrine provides defendants a “necessary counterbalance to a plaintiff’s choice of forum to insure [sic] fairness and practicality.”  Bratic v. Rubendall, 99 A.3d 1, 6 (Pa. 2014) (cleaned up).  Historically, to establish forum non conveniens, a defendant had to show the plaintiff’s chosen forum is either oppressive or vexatious without any particular form of proof.  Through a series of recent decisions, however, the Pennsylvania Superior Court has sown uncertainty in the once-settled area of the law, subjecting some litigants to new, more rigid requirements and others to the traditional, flexible standard that has existed under Pennsylvania law for over a quarter century.  With each new decision, the intermediate appellate court reveals another piece of the puzzle.  But as a fragmented image takes shape, litigants and trial courts are looking to the Pennsylvania Supreme Court to solve the puzzle.

Background

Forum non conveniens was once a reliable tool for defendants to transfer a case to a more appropriate forum in the Commonwealth if litigating in the plaintiff’s chosen forum would be oppressive or vexatious.  In applying the doctrine, the Pennsylvania Supreme Court has consistently emphasized the necessity of a fact-specific assessment, refusing to impose a specific standard of proof and instead focusing on the totality of the circumstances with considerable discretion granted to trial courts.  Bratic, 99 A.3d at 6-8; Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156 (Pa. …

Pittsburgh, PA

Legal Intelligencer

(by Steve Korbel, Anna Jewart and Anna Hosack)

Last week, thousands of newly elected public officials took office across Pennsylvania and began their duties.  Whether beginning a first or fifth term, those in public office must review their obligations regarding open meetings and public engagement.  Several statutes in Pennsylvania impose open meeting, public comment, and advertising requirements.  This “cheat sheet” will focus on the most common requirements for local governments, and specifically will address two key statutes: the Pennsylvania Sunshine Act, 65 Pa.C.S. § 701–716 (the “Sunshine Act”) and the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq, (the “MPC”), which local government officials are likely to come across in their duties.

The Sunshine Act is the primary “open meetings” law for the Commonwealth of Pennsylvania.  Its intent is to promote the right of the public to be present at all meetings of public agencies and to witness the deliberation, policy formulation, and decision-making of those agencies.  In general, it requires that agencies, including local governing bodies and their committees, take official action at a public meeting.  The MPC is the statute that authorizes local zoning and other land use regulations.  It sets additional requirements for actions involving zoning, subdivision, and land development.

The Sunshine Act and MPC are not the only statutes that regulate how official action is taken.  Municipal enabling legislation such as the Borough Code, 8 Pa.C.S. §101 et seq., First Class Township Code, 53 P.S. §55101 et seq., and Second Class Township Code, 53 P.S. §65101 et seq., impose advertising and other requirements for the approval of ordinances, bidding processes, approval of budgets, and other matters.   …

Pittsburgh, PA

TEQ Magazine

(By Ember Holmes)

Earlier this year, Pennsylvania’s Breach of Personal Information Notification Act (BPINA), underwent its first major update since it was signed into law in June 2006.

The Amended BPINA1,  which went into effect on May 2, 2023, affects all Pennsylvania entities that store information belonging to Pennsylvania residents, but has the most significant impact on state agencies and entities that contract with state agencies.

BPINA was designed to set security parameters and standards for entities that maintain, store or manage computerized data containing the Personal Information (as defined below) of Pennsylvania residents. BPINA sets forth specific requirements for notifying residents of security system breaches. The Amended BPINA creates new definitions for previously undefined terms in BPINA, amends existing term definitions, and bolsters notification and security requirements for state agencies, state agency contractors, counties, public schools, and municipalities.

As a state agency, the Pennsylvania Department of Environmental Protection (PADEP) will be subject to this higher level of scrutiny with regard to its handling of personal information. In addition, any entity that contracts with the PADEP or maintains data on behalf of the PADEP or any other state agency is also subject to these more stringent requirements and should be familiar with the updates as applicable to their notification, reporting and encryption practices.

Expanded Definition of “Personal Information” and Related Notification Requirements

• The original BPINA definition of “Personal Information” included: (i) Social Security numbers; (ii) driver’s license numbers or state identification card numbers issued in lieu of driver’s licenses; and (iii) financial account numbers and credit or debit card numbers, in combination with any required access codes or passwords that would permit access to an individual’s account.

…

Pittsburgh, PA

PIOGA eWeekly

(By Gary Steinbauer and Christina Puhnaty)

On December 2, 2023, the U.S. Environmental Protection Agency (EPA) released a pre-publication version of its final Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review (Final Rule). The Final Rule comes more than two years after EPA published its initial proposal on November 15, 2021 (Initial Proposal) and a supplemental proposal on December 6, 2022 (Supplemental Proposal) (collectively, the “Proposals”). According to EPA, the agency received over one million comments on the Proposals.  For information on the Proposals, please see our November 11, 2021 and December 12, 2022 articles. This Alert focuses on critical aspects of the Final Rule, including key changes that EPA made since issuing the Proposals.1

Brief Overview of Methane Rule

The Methane Rule is comprised of four separate actions proposed under sections 111(b) and 111(d) of the Clean Air Act. EPA currently regulates emissions of volatile organic compounds (VOCs) and methane from oil and natural gas facilities under 40 C.F.R Part 60 Subparts OOOO2 and OOOOa.3 First, through this Final Rule, EPA will regulate oil and natural gas facilities constructed, modified, or reconstructed after December 6, 2022, under a new Subpart OOOOb.  The requirements in OOOOb will apply to affected facilities 60 days after the rule is published in the federal register.  Second, under a new Subpart OOOOc, EPA finalized emissions guidelines that are intended to inform states in the development, submittal, and implementation of state plans to establish standards of performance for greenhouse gases (in the form of limitations on methane) from sources existing on or before December 6, 2022.  …