October 4, 2022

What to consider before starting a new construction project

Smart Business

(By Sue Ostrowski featuring Matthew Moses)

Labor and supply shortages, combined with rising interest rates, have many owners reconsidering the timeline for their construction projects — and in some cases, they are deciding not to proceed.

“Materials that used to be available in the normal course of business — concrete, steel, aggregate, light fixtures, lumber — that go into construction projects are now not as readily available,” says Matthew Moses, attorney at Babst Calland. “With interruptions in foreign trade, domestic supplies and transportation, things that used to be viewed as completely dependable now may not be available as needed. And the construction labor supply is smaller than it used to be before COVID, in both in the trades and in unskilled labor.”

Smart Business spoke with Moses about what to consider before deciding when — and if — to move forward with a construction project.

How are rising interest rates impacting construction?

If owners have their own funds to spend on a project, that’s great. But if they need financing, the cost of borrowing has increased and is widely expected to continue to rise. That could have a significant impact on the cost of a project, as a 1.5 percent interest rate increase on a $5 million project could result in a six-figure cost increase.

There is some pressure to borrow now, before interest rates rise further. Ask your lender how long it can commit to a rate lock for a particular project. That has typically been a few months but is changing with interest rate volatility. And while that was not previously a major problem, it can be if the project is contingent on other actions that push out the closing date on the loan. …

October 3, 2022

Washington DC Attorney Sloane Wildman Joins Babst Calland

Babst Calland announced that Attorney Sloane Wildman has joined the firm’s Washington, D.C. office as a shareholder and member of its Environmental practice group.  

Sloane Wildman’s practice involves CERCLA and RCRA site remediation and counseling clients in all aspects of environmental law and regulation, including RCRA, CERCLA/EPCRA release reporting, Safe Drinking Water Act, TSCA, FIFRA, green marketing, the Clean Water Act and the Clean Air Act. She represents clients in administrative, civil judicial and criminal enforcement cases. Her wide-ranging RCRA experience includes counseling, defense of enforcement actions and permitting and encompasses all aspects of federal and state hazardous waste regulation, including solid and hazardous waste identification, generation, transportation, treatment, storage, disposal, closure and corrective action matters.

Ms. Wildman earned her J.D. from the University of Virginia School of Law and received her undergraduate degree from Dartmouth College.

Ms. Wildman is admitted to practice in the District of Columbia and California (inactive) and before the U.S. District Courts for the Eastern and Southern Districts of California. She is a member of the District of Columbia Bar Association’s Environment, Energy and Natural Resources Section and the American Bar Association’s Natural Resources, Energy and Natural Resources Section.

September 20, 2022

Keith Coyle Gives Testimony at the Pennsylvania House Environmental Resources and Energy Committee Hearing’s Wellhead to Stovetop – Conveying Energy in Pa

In his testimony on September 20, 2022 at the Pennsylvania House Environmental Resources and Energy Committee public hearing regarding “Wellhead to Stovetop – Conveying Energy in PA,” Babst Calland Attorney Keith Coyle, chair of the Marcellus Shale Coalition’s Pipeline Safety Workgroup, discussed the role and contribution of natural gas in the energy sector, and the importance of pipelines as a means of transporting natural gas from the wellhead to consumers.  He urged the Committee to recognize the importance of the natural gas industry and offered thoughts on the policies that should be considered in securing Pennsylvania’s energy future.

He explained, “Policies that impose unnecessary barriers on natural gas production or that prohibit the installation of pipeline infrastructure will create an energy system that is far less secure, particularly in the short term. The basic needs of everyday Americans cannot be met if one-third of the country’s primary energy production is unavailable or cannot be safely and reliably delivered to consumers.  Nor can the needs of the Commonwealth’s citizens be met without the natural gas that heats its homes and runs its power plants. As the recent developments in Europe show, policies that fail to account for the energy needs of a modern society are not progressive and often cause the greatest harm to those who are the most vulnerable.”

To view the live stream video of the House Environmental Resources & Energy Committee public hearing regarding “Wellhead to Stovetop – Conveying Energy in PA,” click here. 

September 15, 2022

Managing and Supervising the Remote Worker: One Employment Attorney’s Tips

Legal Intelligencer

(by Janet Meub)

On March 19, 2020, in response to the worldwide spread of the novel coronavirus, Pennsylvania Governor Tom Wolf issued an Executive Order  “…Regarding the Closure of All Businesses that are not Life Sustaining,” https://www.governor.pa.gov/wp-content/uploads/2020/03/20200319-TWW-COVID-19-business-closure-order.pdf. Many Pennsylvania workers were essentially locked out of the office. Governors throughout the U.S. issued similar orders, though what workers were deemed “essential” versus “non-essential” differed from state to state. Initially, attorneys in Pennsylvania were non-essential, but Ohio attorneys, for example, were essential! Gradually, businesses reopened, but not all employees returned to the office. We learned from the COVID-19 Pandemic that, for better or for worse, remote working in many employment contexts is here to stay.

Some professions and business models have been more adept at pivoting to remote work than others. Educators have been teaching cyber school and online college and graduate school classes for years. Telemedicine, once a novel way to reach patients in rural, underserved communities without access to hospitals or medical specialists, is now available to anyone with a computer or smart phone.

Many employers have reaped many benefits from remote working. Office space per square foot is no longer a concern with many employers declining to renew long-term, commercial leases. It has been widely reported that employees working from home are putting in longer hours and can be just as productive at home as they were in the office. There is no commute. Data entry at home is the same as data entry at the office – except without the overhead.

No change comes without challenge, however. Remote employment requires employers to re-examine how we manage and supervise employees. Take, for example, the legal profession. …

September 9, 2022

Federal Court Dismisses Challenge to Oil and Gas Unitization Statute

Energy Alert

(by Austin Rogers and Robert Stonestreet)

On Wednesday, September 7, 2022, Judge John Preston Bailey of the federal District Court for the Northern District of West Virginia granted a motion to dismiss a lawsuit challenging the validity of Senate Bill 694, West Virginia’s new oil and gas unitization statute. The statute authorizes the West Virginia Oil and Gas Conservation Commission to issue orders authorizing certain oil and gas interests to be included in what are known as development units, even without the consent of the interest owner, under very narrow circumstances.

Plaintiffs, who owned mineral interests in property that could potentially be subject to the unitization procedure in SB 694, sought to prevent the statute from becoming effective by claiming that the law, among other things, allows the unconstitutional taking of private property without just compensation in violation of both the United States Constitution and the West Virginia Constitution. Plaintiffs also argued that the statute deprived them of due process in the taking of their property in violation of the Fifth and Fourteenth Amendment of the United States Constitution. The Court dismissed the challenge because (1) the plaintiffs lacked standing and (2) Governor Jim Justice, the sole defendant, has sovereign immunity under the Eleventh Amendment.

With respect to standing, the Court held that the plaintiffs failed to satisfy any of the three requirements: (1) an injury-in-fact; (2) that was traceable to the statute; and (3) that could be redressed by the Court. According to Judge Bailey, the plaintiffs did not suffer an injury in fact because their tract has not been unitized, and no operator has even applied to unitize their mineral tracts under SB 694. Second, the alleged injury is not traceable to the Governor’s conduct because the Governor has no power to enforce SB 694. …

September 8, 2022

Significant WOTUS Developments Expected in 2022

PIOGA Press

(By Lisa Bruderly)

Why is the WOTUS Definition Important?

This article is an excerpt of The 2022 Babst Calland Report, which represents the legal perspective of Babst Calland’s energy attorneys addressing the most current business and regulatory issues facing the energy industry. To view the full report, go to reports.babstcalland.com/energy2022-2.

Compliance with federal permitting associated with disturbances to streams and wetlands can be a challenge for large and small pipeline projects, causing delays and increased expenses. The extent of required federal permitting is largely dependent on the definition of “waters of the United States” (WOTUS), which determines federal jurisdiction under the Clean Water Act (CWA).

The definition of WOTUS must be considered anytime there is earth disturbance that may impact a stream or wetland. For example, pipeline construction requires U.S. Army Corps of Engineers (Corps) permitting for impacts from crossing, or otherwise disturbing, federally regulated streams and wetlands. Note that the WOTUS definition is included in 11 federal regulations and affects, not only federal permitting for impacts to regulated streams and wetlands (i.e., Section 404 permitting), but also the applicability of NPDES permitting requirements, federal spill reporting and SPCC plans.

Why is the WOTUS Definition Controversial?

The definition of WOTUS has been hotly contested and frequently changed for more than a decade. Presidents Obama, Trump and Biden have all proposed their own definitions, which largely reflected their agendas for more, or less, stringent regulation. The current definition is actually the definition that was in place prior to the Obama administration. The Corps and U.S. Environmental Protection Agency (USEPA) reverted back to this definition when President Trump’s Navigable Waters Protection Rule (NWPR) was vacated by the U.S. …

October 7, 2022

Susanna Bagdasarova and Joseph Pope Join Babst Calland

Attorneys Susanna Bagdasarova and Joseph A. Pope recently joined Babst Calland.

Susanna Bagdasarova joins the Corporate and Commercial and Emerging Technologies groups as an associate. She represents business clients in connection with a broad range of general corporate and commercial law matters, including entity formation, corporate structuring, corporate governance, commercial contracts, and mergers and acquisitions, with a focus on the technology sector. Prior to joining Babst Calland, Ms. Bagdasarova was an associate with Jones Day. She graduated summa cum laude from The Pennsylvania State University, The Dickinson School of Law in 2015.

Joseph Pope joins the Corporate and Commercial Group as senior counsel. Mr. Pope’s practice focuses on corporate and transactional matters, including corporate and commercial finance transactions, with a particular focus on transactions involving commercial real estate. Prior to joining Babst Calland, he was a senior attorney with Hergenroeder Rega Ewing & Kennedy. Mr. Pope graduated cum laude from the University of Pittsburgh School of Law in 2008.

September 6, 2022

Developments in the calculation of an assessment ratio could benefit Allegheny County property owners

Smart Business

(By Sue Ostrowski featuring Peter Schnore)

Commercial property owners in Allegheny County may be able to significantly reduce their real estate tax assessments — and their property taxes — in 2023.

“Real estate taxes are nearly always the largest operating expense for an income-producing property, and an important development in the calculation of the Common Level Ratio for Allegheny County presents a golden opportunity to reduce property taxes,” says Peter Schnore, Shareholder at Babst Calland.

Smart Business spoke with Schnore about what has changed in the assessment ratio, and how commercial property owners can take steps to reduce their property taxes.

What change is impacting commercial Allegheny County property owners?

The Pennsylvania State Tax Equalization Board recently published the Common Level Ratios (CLR) to be used in evaluating the merits of Pennsylvania tax assessment appeals for the 2023 tax year.

The CLR for Allegheny County has dropped significantly since its publication by the state last year — from 81.1 percent to 63.6 percent. This means that if a property was accurately assessed for 2022, all else equal, it will be overassessed by about 27 percent for Tax Year 2023.

A recent court challenge to the 2022 CLR’s calculation, which remains ongoing at the time of publication, appears to have led to the dramatic drop in the CLR for Allegheny County.

What can property owners do to take advantage of this opportunity?

Property owners should find an attorney who is familiar with this area of the law to help them gather evidence to present a strong case for proof of the property’s fair market value. …

September 1, 2022

U.S. Environmental Protection Agency Proposes Designating Certain PFAS as Hazardous Substances Under Superfund

Environmental Alert

(By Matthew Wood and Mackenzie Moyer)

On August 26, 2022, the U.S. Environmental Protection Agency (EPA) issued a pre-publication version of its Proposed Rule which would designate two PFAS chemicals as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund (Proposed Rule). Specifically, the Proposed Rule would list perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) – the two most common and well-studied PFAS – and their salts and isomers as hazardous substances under CERCLA. This is the first time EPA is making such designations by exercising 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).

In the Proposed Rule, EPA identified five broad categories of potentially affected entities: (1) PFOA/PFOS manufacturers (including importers and importers of articles); (2) PFOA/PFOS processors; (3) manufacturers of products containing PFOA/PFOS; (4) downstream product manufacturers and users of PFOA/PFOS products; and (5) waste management and wastewater treatment facilities. Potentially affected industries include aviation operations, chemical manufacturing, firefighting foam manufacturers, fire departments and training facilities, polymer manufacturers, and waste management and remediation services.

In the lead-up to issuance of the Proposed Rule, certain entities, such as drinking water utilities, wastewater utilities, and landfill operators, expressed concerns that they could face significant new liabilities for contamination originating from others. In its accompanying announcement, EPA said, without identifying specific industries, that it is “focused on holding responsible those who have manufactured and released significant amounts of PFOA and PFOS into the environment” and intends to use its “enforcement discretion” to “ensure fairness for minor parties who may have been inadvertently impacted by the contamination.” EPA further said that it will continue to engage with impacted communities, wastewater utilities, businesses, farmers, and other parties throughout the consideration of the Proposed Rule. …

August 30, 2022

Attorney Alex Farone Leads Newsletter to Receive a 2022 ABA Award of Achievement

Attorney Alex Farone who is also the Co-Chair of the Allegheny County Bar Association’s Communications Committee of the Young Lawyer’s Division and the Editor and Chief of its “Point of Law” Newsletter led the newsletter to receive a 2022 American Bar Association Award of Achievement. This award is presented to projects submitted by local, state and national ABA YLD Affiliates for well-planned, and executed, programs that contribute significantly to the public and the betterment of the legal profession. Recognition is determined by a jury of their peers.

View the “Point of Law” Newsletter, here.

View the Spring 2022 issue, here.

August 25, 2022

Who Knows? Timeliness of Objector Appeals of Zoning Permit Approvals

Legal Intelligencer

(By Blaine Lucas and Anna Jewart)

While property rights are often viewed as inherently private, both law and society recognize that there is also a public nature to the use of land.  To this end, the Pennsylvania Municipalities Planning Code (MPC)1 establishes requirements mandating public notice of and allowing for public participation in the land use decision-making process.  For example, where a landowner requests a variance or special exception from the zoning hearing board, or a conditional use from the governing body, those entities must publish notice of and hold a public hearing on the application.  At that hearing, impacted members of the public may comment on and/or object to the application.  However, land use decisions for what are called “uses by right” are not made by the governing body or the zoning hearing board, but instead are addressed at an administrative level by the municipal zoning officer.  Upon receipt of an application for a use by right, a zoning officer is not required to provide any public notice, public hearing, or public comment period.  As a result, members of the public may not learn of a zoning officer’s approval until the landowner actually commences construction, which could be long after any permit was issued.

The zoning hearing board has jurisdiction over appeals from the determinations of a zoning officer.  53 P.S. §10909.1(3).  An appeal from a determination adverse to the applicant must be filed with the board within 30 days after notice of the determination is issued to the applicant.  53 P.S. §10914.1(b).  In this situation, the appeals deadline is easy to calculate.  However, when an application is granted, individuals who may wish to oppose the application may not have any idea such a decision occurred.   …

August 24, 2022

PHMSA Publishes Final Rule Introducing New Requirements for Gas Transmission Pipeline Operators

Pipeline Safety Alert

(by Keith Coyle, Chris Hoidal and Brianne Kurdock)

On August 24, 2022, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published a new final rule for onshore gas transmission pipelines (the Rule).  The Rule marks the completion of a three-phase rulemaking process, commonly referred to as the Gas Mega Rule, that began more than a decade ago.  While this part of the Gas Mega Rule is commonly known as the “Repair Rule,” there are numerous other safety provisions that are included in the new regulation that should not be overlooked. The Rule amends or adds various provisions in 49 C.F.R. Part 192 and will become effective on May 24, 2023.

In the Rule, PHMSA added, clarified, or modified the following sections of the natural gas pipeline safety regulations:

  • definitions in section 192.3;
  • the management of change process;
  • corrosion control requirements;
  • inspections of pipelines following extreme weather events;
  • integrity management provisions;
  • integrity management assessment requirements;
  • revised repair criteria in high-consequence areas; and
  • new repair criteria for non-high consequence areas.

Definitions and Standards Incorporated by Reference

PHMSA added new definitions referenced in the new regulations,  including close interval survey, distribution center, dry gas or dry natural gas, hard spot, in-line inspection (ILI), in-line inspection tool or instrumented internal inspection device, and wrinkle bend. Furthermore, the definition of transmission pipelines was revised to include a “connected series” of pipelines to clarify that transmission pipeline can be downstream of other transmission pipelines, and to allow operators to voluntarily designate their pipelines as transmission lines. …

August 22, 2022

Attorney Casey Coyle Joins Babst Calland

Attorney Casey Alan Coyle recently joined Babst Calland as a shareholder and member of its Litigation Group. Mr. Coyle will be based in Harrisburg, Pa.

Mr. Coyle concentrates his practice on appellate law and complex commercial litigation.  He frequently represents clients in state and federal appellate courts, with a particular emphasis on appeals before the Pennsylvania Supreme Court.  Over his career, he has represented either a party or an amicus curiae in 15 appeals before the Pennsylvania Supreme Court.

Mr. Coyle has also successfully petitioned the Pennsylvania Supreme Court to grant review of an appeal—commonly known as “allocatur”—on six different occasions.  In addition, he has presented oral argument before the U.S. Court of Appeals for the Sixth Circuit, Pennsylvania Supreme Court, Pennsylvania Commonwealth Court, and Pennsylvania Superior Court.  Before entering private practice, Mr. Coyle served for over two years as a law clerk for the Honorable Thomas G. Saylor, Chief Justice Emeritus of the Pennsylvania Supreme Court.

“We’re very pleased to have Casey as part our Litigation team. He is a highly accomplished litigator representing clients in matters pending before state and federal appellate courts,” said Donald Bluedorn, Babst Calland’s Managing Shareholder. “Casey’s proven experience and track record in appeals before the Pennsylvania Supreme Court will be an invaluable contribution to our Firm, and most importantly for our clients.”

Mr. Coyle also regularly represents businesses in disputes pending before state and federal trial courts.  His practice has focused on cases involving theft of trade secrets, non-competition/non-solicitation agreements, shareholder litigation, emergency injunctions, breach of contract, and breach of fiduciary duties.  In addition, he has represented clients in matters brought before the Pennsylvania Commonwealth Court as part of its original jurisdiction.

“I look forward to serving the expanding needs of my clients and working with a well-respected legal team who shares my values, experience, and philosophy, and a proactive approach to business-focused problem-solving and client service,” said Coyle. …

August 19, 2022

The Inflation Reduction Act Reinstates Superfund Petroleum Excise Tax

Environmental Alert

(By Jean Mosites and Amanda Brosy)

On August 16th, President Joe Biden signed the Inflation Reduction Act of 2022 (the Act) into law. The Act, as part of a larger budget reconciliation package, provides roughly $370 billion in investments in energy and climate reform geared towards lowering greenhouse gas emissions by 40 percent, based on 2005 levels, by 2030.

Among other things, the Act resurrects a long-expired Hazardous Substance Superfund Trust Fund (Superfund) excise tax on oil and petroleum products, effective as of January 1, 2023. In 1980, Congress had established the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). CERCLA is commonly referred to as “Superfund”. It allows EPA to clean up contaminated sites. It also requires the parties responsible for the contamination to either perform cleanups or reimburse the government for EPA-led cleanup work. When there is no viable responsible party, Superfund gives EPA the funds and authority to clean up contaminated sites.

The purpose of the petroleum excise tax is to replenish the Superfund, which provides the federal government with resources to respond to environmental threats related to hazardous substances not otherwise addressed by responsible parties. The petroleum excise tax applies to crude oil received at a U.S. refinery (which tax must be paid by the operator of the refinery) and to petroleum products entering the U.S. for consumption, use, or warehousing (which tax must be paid by the person importing the product into the U.S. for any of those purposes). In addition, if any domestic crude oil is used in or exported from the U.S., and before such use or exportation no tax was imposed on such crude oil at the refinery (as described above), then a separate tax is imposed. …

August 18, 2022

Three Babst Calland Attorneys Named as 2023 Best Lawyers® “Lawyers of the Year”, 31 Selected for Inclusion in The Best Lawyers in America®, and 11 Named to Best Lawyers® “Ones to Watch”

Babst Calland is pleased to announce that three lawyers were selected as 2023 Best Lawyers “Lawyer of the Year” in Pittsburgh, Pa. and Charleston, W. Va. (by BL Rankings). Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant.

Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, professionalism, and integrity. Those named to the 2023 Best Lawyers “Lawyer of the Year” include:

Blaine A. Lucas, Litigation – Land Use and Zoning “Lawyer of the Year” in Pittsburgh, Pa.

Timothy M. Miller, Oil and Gas Law “Lawyer of the Year” in Charleston, W. Va.

Mychal Sommer Schulz, Litigation – ERISA “Lawyer of the Year” in Charleston, W. Va.

In addition, 31 Babst Calland lawyers were selected for inclusion in the 2023 edition of The Best Lawyers in America (by BL Rankings), the most respected peer-review publication in the legal profession:

  • Chester R. Babst – Environmental Law, Litigation – Environmental
  • Donald C. Bluedorn II – Environmental Law, Water Law, Litigation – Environmental
  • Dean A. Calland – Environmental Law
  • Matthew S. Casto – Commercial Litigation
  • Frank J. Clements – Corporate Law
  • Kathy K. Condo – Commercial Litigation
  • James Curry – Energy Law and Oil and Gas Law
  • Julie R. Domike – Environmental Law, Litigation – Environmental
  • Kevin K.

    • …

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