Articles, Alerts & Perspectives

Charleston, WV, Pittsburgh, PA, Harrisburg, PA

Babst Calland recently named Tiffany M. Arbaugh, Alexandra G. Farone and Stefanie Pitcavage Mekilo shareholders.

Tiffany Arbaugh practices in the Firm’s Charleston, W.Va. office and is a member of the Energy and Natural Resources and Litigation groups. Tiffany has more than twenty years of experience and focuses her practice on representing corporations in a variety of litigation matters with an emphasis in corporate transactions and all facets of energy-related litigation including mineral title, real estate, trespass, fraud, title curative, personal injury and toxic torts. Her practice also includes advising clients in customary business operations, litigation avoidance strategies and litigation preparedness. Tiffany is a 2005 graduate of Appalachian School of Law.

Alexandra Farone practices in the Firm’s Pittsburgh, Pa. office and is a member of the Employment and Labor, Litigation, and Emerging Technologies groups. Alex has extensive experience advising and representing corporate, technology, municipal, and energy clients in employment and labor law and complex commercial litigation. Her practice includes comprehensive human resources counseling and litigation for employers ranging from Fortune 500 companies and startups to municipalities, police departments, family-owned businesses, healthcare providers, financial services and technology companies. She advises on restrictive covenants, discrimination and harassment, disability accommodation, grievances, personnel best practices, contract negotiations, wage and hour issues, and collective bargaining, and litigates matters involving complex commercial disputes, trade secrets, employment discrimination, restrictive covenants, product liability, and toxic torts. Alex also has additional experience litigating matters concerning technology, insurance, construction, class actions, maritime, environmental, and oil and gas law. She is a 2017 graduate of the University of Pittsburgh School of Law.

Stefanie Pitcavage Mekilo practices in the Firm’s Harrisburg, Pa. office. Stefanie is a civil litigator who draws on more than a decade of trial-court experience in the federal judiciary to guide clients through all aspects of the litigation process. …

Pittsburgh, PA

The Legal Intelligencer

(by Jenn Malik and Peter Zittel)

Imagine sitting down for a virtual meeting where sensitive legal matters are being discussed and internal strategy decisions are unfolding, with everyone assuming the conversation is confidential and limited to the people on the call. Only later does someone in the meeting realize that a small “note-taker” icon was glowing in the corner of the screen, an artificial intelligence tool was present, recording and transcribing every word that was said. In that moment, the participants realize that what they assumed was a confidential discussion may indeed, not be so private.

These are the exact events that resulted in the filing of a nationwide class action in August 2025. In Brewer v. Otter.ai, plaintiffs allege that Otter.ai’s “Notetaker” and “OtterPilot” tools unlawfully intercepted and recorded private video-conference meetings without obtaining consent from all participants. The complaint claims the AI assistant joins calls as an autonomous participant, transmits conversations to Otter’s servers for transcription, records even non-account holders, provides little or no participant notice, and shifts responsibility for consent onto meeting hosts. Plaintiffs further allege Otter retained recordings indefinitely and used captured communications to train its AI models, including voices of individuals who were unaware they were being recorded. The lawsuit asserts federal wiretap and computer-access violations, multiple California privacy law violations, and common-law claims for intrusion and conversion, casting AI notetakers not as neutral productivity tools but as unauthorized third-party surveillance operating inside private meetings.

AI meeting assistants offer numerous benefits, including allowing participants who would otherwise be taking notes to stay fully engaged, automatically generating meeting summaries and action items, producing uniform and unbiased notes for all participants, and even identifying speakers by their voices.  …

Pittsburgh, PA and Washington, DC

PIOGA Press

(by Lisa Bruderly and Ethan Johnson)

On November 17, 2025, the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers (the Corps) proposed a revised definition of “waters of the United States” (WOTUS) under the Clean Water Act (Proposed Rule). The Trump administration announced that the Proposed Rule would “provide greater regulatory certainty and increase Clean Water Act program predictability and consistency.”

The new definition is expected to reduce the number of streams and wetlands that are regulated under the Clean Water Act and will impact several federal regulatory programs, including Section 404 permitting of impacts to regulated waters. The agencies drafted the Proposed Rule to closely mirror the U.S. Supreme Court’s 2023 decision in Sackett v. EPA, which held that the Clean Water Act extends to “relatively permanent” bodies of water connected to traditional navigable waters and wetlands with a “continuous surface connection” to those waters.

The Proposed Rule adds definitions for several terms, including “relatively permanent,” “tributary,” “continuous surface connection,” “prior converted cropland,” and “ditch.”

The public comment period will begin when the Proposed Rule is published in the Federal Register. If finalized, it will replace the Biden administration’s 2023 definition of WOTUS. The definition of WOTUS has changed several times in the last decade. Each new definition has been challenged in the courts.

Babst Calland will stay up to date on WOTUS developments and the Clean Water Act, in general. If you have any questions or would like any additional information, please contact Lisa Bruderly at (412) 394-6495 or lbruderly@babstcalland.com, or Ethan Johnson at (202) 853-3465 or ejohnson@babstcalland.com. …

Pittsburgh, PA

PIOGA Press

(by Kevin Garber and Alex Graf)

On November 12, 2025, Governor Josh Shapiro signed House Bill 416, a Fiscal Code Bill and a segment of the Pennsylvania budget package for Fiscal Year 2025-26.  The Fiscal Code has several important implications for industry regulation, including the abrogation of the Regional Greenhouse Gas Initiative regulations, permitting relief through expedited review schedules for certain air and water general permits, and provisions to ensure grid reliability.

The Fiscal Code abrogates the RGGI provisions contained in 25 Pa. Code Chapter 145, Subchapter E, known as the CO2 budget trading program.  The RGGI regulations were promulgated in 2022 but have not yet been implemented in Pennsylvania because of ongoing legal challenges.  In November 2023, the Pennsylvania Commonwealth Court ruled that RGGI is an unconstitutional, unenforceable tax.  Governor Shapiro and many other parties appealed that ruling to the Pennsylvania Supreme Court, where the case was fully briefed and argued last May.  Although the Court’s course of action remains uncertain now that RGGI has been abrogated, the Court could dismiss the appeal as moot and decline to issue an opinion.

The Fiscal Code also expedites permitting for certain air and water-related general permits. The Pennsylvania Department of Environmental Protection now must respond within 20 days of submission to an application under the Air Pollution Control Act for coverage under a general plan approval or general permit. If the applicant addresses the technical deficiencies within 25 days, DEP must issue a final determination on the application within 30 days thereafter. However, if DEP misses this deadline, the application is deemed to have been approved. DEP may seek a one-time, 5-day extension to respond if the applicant agrees. …

Pittsburgh, PA

The Legal Intelligencer

(by Janet Meub)

When can an employee hold its employer liable for harassment by a third-party? For instance, can a concierge hold a hotel liable for the inappropriate conduct of a paying guest? The consensus in many circuit courts, heavily influenced by the Equal Employment Opportunity Commission’s (EEOCs) guidance and procedural regulations, is that negligence is enough to answer that question in the affirmative.  If an employer knew or should have known of the third-party harassment and failed to take immediate action, the employer can be held liable. However, the Sixth Circuit recently strayed from the path of the negligence theory of liability, and in Bivens v. Zep, Inc., 147 F. 4th 635 (Aug 8, 2025), held that Title VII “imposes liability for non-employee harassment only where the employer intends for the harassment to occur.”

To establish a sex-based hostile work environment claim under Title VII, a plaintiff must establish that (1) she is a member of a protected class (2) who faced unwelcome harassment, which (3) was based on her sex and (4) created a work environment that reasonably interfered with her work performance, for which (5) her employer is responsible. Employers can be held directly liable for the actions of their agents, whether those of a supervisor who can bind the company or those of a lower-level employee whose intentional acts are within the scope of employment can result in vicarious liability for the employer. Because sexual harassment does not serve any business purpose, most circuit courts have interpreted Title VII to require a showing that the harasser was either “aided in accomplishing the tort by the existence of the agency relationship” or that the employer was negligent in letting the employee commit the tort. …

Harrisburg, PA and Pittsburgh, PA

The Legal Intelligencer

(by Casey Alan Coyle and Ryan McCann)

Pleadings are the opening act of litigation—setting the stage, defining the cast, and signaling the story to come.  But Bernavage v. Green Ridge Healthcare Group, LLC, et al., No. 1576 MDA 2023 (Pa. Super. Ct.), which is pending on appeal before the en banc Superior Court, presents a plot twist: what happens when a plaintiff introduces an entirely new theory just as the curtain is about to fall and the house lights begin to rise?  Specifically, the appeal poses the question of whether a plaintiff is permitted to amend her complaint in the middle of trial to add allegations of the defendants’ recklessness and request an award of punitive damages.

Standard to Amend Pleadings

Rule 1033 of the Pennsylvania Rules of Civil Procedure governs amended complaints.  It states, in relevant part, that a party may amend a pleading—whether to “change the form of action, add a person as a party, correct the name of a party, or otherwise amend the pleading”— “at any time” “either by filed consent of the adverse party or by leave of court.”  Pa.R.Civ.P. 1033(a).  On its face, Rule 1033 does not impose a time limit on when a pleading such as a complaint must be amended.  Indeed, the Superior Court has held that a complaint may be amended “at the discretion of the trial court after pleadings are closed, while a motion for judgment on the pleadings is pending, at trial, after judgment, or after an award has been made and an appeal take therefrom.”  Biglan v. Biglan, 479 A.2d 1021, 1025–1026 (Pa. …

Pittsburgh, PA

GO-WV

(by Steve Silverman and Katerina Vassil)

There has been much talk within the oil and gas industry about the potential for lithium extraction from produced water, a waste byproduct produced during hydraulic fracturing and drilling.  Is this only talk, or are we approaching another extraction revolution? The answer is that the revolution is knocking on the door, but there remain significant practical and legal hurdles to overcome. To become viable, lithium extraction must become both economically and environmentally sustainable.  Thus far, these technologies have not proven to be economically scalable, nor could their environmental impacts be justified.

The legal hurdles involving lithium extraction can be summed up in one question:  Who owns the lithium?  Is it the surface owner, the mineral owner (where the two differ), or the operator?  As seen below, the standard lawyer answer applies:  it depends.

Incentives for overcoming these hurdles could not be higher.  Whoever masters lithium extraction technology from produced water will be able to name their own price for licensing that technology.   Just as importantly, the oil and gas industry will be a major contributor to solving the obstacles currently facing the U.S. in sourcing lithium. Current U.S. dependence on foreign suppliers of lithium, especially China, raises significant geo-political concerns that can be cured by sourcing lithium domestically.  Current estimates are that 40% of the country’s lithium needs are contained within the Appalachian Basin alone.

Lithium in Context

A. Lithium as a Commodity

Produced water contains a variety of constituents – sediment, salts, hydrocarbons, minerals, and metals. Lithium is one of these constituents, and when extracted and processed, lithium has numerous uses and applications. …

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(by Joe Reinhart, Sean McGovern, Matt Wood and Ethan Johnson)

In response to supply shortfalls due to data center demand, the largest regional transmissional operation in the United States, PJM Interconnection (PJM), has submitted its Expedited Interconnection Track (EIT) proposal to allow new generators to bypass the traditional interconnection queue. PJM is a regional transmission organization that coordinates the movement of wholesale electricity in 13 states and the District of Columbia. The EIT proposal operates in parallel to the standard PJM Cycle Process. PJM estimates a 10-month timeframe for the new, expedited process, whereas the standard Cycle Process can take up to four years or longer. PJM modified the EIT proposal based on stakeholder feedback, with key modifications including enhanced demand-side participation, better load forecasting, and improvements to the interconnection process. Eligible projects may be of any fuel type, but must:

• have a capacity larger than 500MW;
• be sponsored by a state within the PJM coverage;
• request Capacity Interconnection Rights simultaneously;
• achieve commercial operations within three years of submitting their application;
• submit a large non-refundable study deposit (> $500,000) and readiness deposit ($10k/MW); and
• provide three full years of site control for 100% of generating site & interconnection facilities at time of application.

If a project does not meet the eligibility criteria for the expedited track, an application may be submitted for the Cycle Process. Gas-fired generation made up 69% of the projects that PJM selected for interconnection review in May 2025. …

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(by Joe Reinhart, Sean McGovern, Matt Wood and Ethan Johnson)

 On September 11, 2025, the Pennsylvania Public Utility Commission (PUC), stressing the need to address aging infrastructure, approved a final order that will speed up the process of identifying and replacing older, at-risk plastic pipe materials in natural gas systems. The final order builds on the PUC’s August 26, 2024, tentative order on the same subject. Under the order, natural gas utilities must catalog older materials identified by federal authorities as being prone to cracking and add mitigation and replacement of these older materials to their management plans. Beyond that, the PUC’s Bureau of Technical Utility Services will require utilities to provide detailed inventories of older plastic pipes and components and explain how they will differentiate the older pipe from the newer pipe.

The PUC’s action comes after several advisory bulletins, dating back to 1998, issued by the U.S. Department of Transportation on pre-1982 plastic pipe materials and a 2023 bipartisan bill introduced to Congress aimed at addressing older piping known to fail. The bill, H.R. 5638, or the Aldyl-A Hazard Reduction and Community Safety Act, was introduced in response to the deadly 2023 natural gas explosion at the R.M. Palmer Co. chocolate factory in West Reading, Pennsylvania. The National Transportation Safety Board, which released its investigation report in March 2025, confirmed that the point of failure was from a retired 1982 service tee made from DuPont Aldyl-A plastic.

The PUC emphasized that utilities that failed to respond to data requests on this issue in the past will be referred for enforcement action. …

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(by Joe Reinhart, Sean McGovern, Matt Wood and Ethan Johnson)

On September 9, 2025, the Pennsylvania Environmental Quality Board (EQB) elected to defer discussion on three pending rulemaking petitions pertaining to the oil and gas industry until its next meeting.

The first rulemaking petition, submitted by regional environmental groups the Clean Air Council and Environmental Integrity Project (Petitioners) in October 2024, asks the EQB to increase setback distances for new unconventional oil and gas wells. As previously reported in Vol. 42, No. 2 (2025) of this Newsletter, on April 8, 2025, the EQB tabled this petition for the stated reason of needing more time to review relevant materials. The proposed rulemaking would extend the existing 500-foot setback from buildings and personal-use water wells and 1,000-foot setback from water supply extraction points, both of which are waivable, to the following distances:

• 3,281 feet from any building or drinking water well;
• 5,280 feet from the property boundary of any building serving vulnerable populations, e.g., hospitals, schools, and daycare; and
• 750 feet from any surface water.

Petitioners’ proposed rule relies on the 2020 43rd Statewide Investigating Grand Jury Report, conducted while current Pennsylvania Governor, Josh Shapiro, was the Attorney General, that investigated impacts on Pennsylvania from the unconventional oil and gas industry as well as the Pennsylvania Department of Environmental Protection’s (PADEP) oversight of the industry. That report made eight recommendations, including increasing setbacks between unconventional gas operations and homes from 500 to 2,500 feet and schools and hospitals from 500 to 5,000 feet, arguing existing setbacks. …

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Mining

(by Joe Reinhart, Sean McGovern, Gina Buchman, and Christina Puhnaty)

On July 14, 2025, the Pennsylvania Department of Environmental Protection (PADEP) announced that it had reduced its permit backlog by 98% since November 2023, from over 2,400 permit applications to fewer than 50. See News Release, PADEP, “Getting Permitting Done: DEP Reduces Permit Backlog by 98% and Has Reviewed Nearly 20,000 Permit Applications So Far This Year” (July 14, 2025). Three of the six PADEP regional offices (Southwest, South Central, and Southeast) have entirely eliminated their permit backlogs. Three specific initiatives launched by the Shapiro administration have allowed PADEP to reach this milestone:

1. PADEP’s modernization of its permit review process by investing in new technologies, including the Permit Tracker (established January 2025) that allows applicants and residents to monitor the progress of permits as they move through the review process.
2. The PAyback program (established November 2023), which assures a moneyback guarantee for permit applicants if an application is not acted on by PADEP in a set time frame. Between January 1, 2025, and October 21, 2025, PADEP decided on 32,690 applications.
3. The Streamlining Permits for Economic Expansion and Development (SPEED) Program (established July 2024), which began accepting applications on June 30, 2025, allows applicants of select permits to use approved qualified contractors to conduct expedited initial application reviews. PADEP reviews recommendations from the qualified contractor and makes the final decision to approve or deny the permit or issue a technical deficiency letter to the applicant.

…

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Mining

(by Joe Reinhart, Sean McGovern, Gina Buchman, and Christina Puhnaty)

On August 9, 2025, the Pennsylvania Department of Environmental Protection (PADEP) announced its intent to modify and reissue the National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Associated with Mining Activities (BMP GP-104). See 55 Pa. Bull. 5768 (Aug. 9, 2025). Under 25 Pa. Code § 92a.32, a mining operation is required to have an individual NPDES permit or coverage under a general NPDES permit if the site has expected or potential discharges associated with a mining operation that are composed entirely of stormwater. To be eligible for coverage under BMP GP-104, an operator must have a qualifying mining authorization (existing or pending), a mining license in good standing (or pending), and they must submit a complete notice of intent to PADEP’s local District Mining Office with a $250 fee. Mining authorization types eligible for BMP GP-104 coverage are coal and noncoal mining permits, small noncoal (and bluestone) permits, noncoal mining general permits, and coal and noncoal exploration activities.

PADEP’s current version of BMP GP-104 expires on March 27, 2026. PADEP plans to reissue BMP GP-104 with an effective date of March 28, 2026, and an expiration date of March 27, 2031. PADEP proposes only one substantive change to BMP GP-104: clarifying that certain permit types eligible for coverage under BMP GP-104 must meet the design standards in 25 Pa. Code ch. 102 (a two-year, 24-hour storm event) rather than the 10-year, 24-hour design storm event standard applicable to coal and large noncoal mines. This clarification applies to the following permits: Small noncoal; …