Articles, Alerts & Perspectives

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.

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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; …

Pittsburgh, PA

PIOGA Press

(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

TEQ Hub

(by Steve Silverman)

Employers often cling to misconceptions about non-compete agreements that can prevent them from effectively using these powerful tools or render such agreements unenforceable. Here are the seven most common reasons why this happens.

1. Failing To Understand What Non-Competes Are
   In the common vernacular, a non-compete is an umbrella term for contractually prohibiting an employee (or independent contractor, buyer of a business, or even a vendor) from working for a competitor or otherwise restricting that employee’s subsequent employment. However, a non-compete is one of several tools available to impose restrictions on an employee leaving their employer called “restrictive covenants.”  A non-compete, which is just one type of restrictive covenant, limits a former employee or independent contractor from working for a competitor for a particular time period in a specific geographic area. A non-solicit agreement is another type of restrictive covenant, which allows an ex-employee to work for any employer they want without any geographic restriction but prohibits them from seeking business from their former employer’s customers for a period of time. Another variation of a non-solicit prohibits that ex-employee from hiring away or encouraging their former colleagues to leave their employment with their former employer. These are sometimes known as anti-piracy provisions. The distinctions between these various types of restrictive covenants are important. For instance, courts are generally more willing to enforce non-solicitation provisions than non-competes. Employers have to decide which, if not all, of these restrictive covenants work best for their business.
2. Assuming That Non-Competes Are Unenforceable
   A significant number of employers, as well as employees, incorrectly believe that restrictive covenants such as non-competes are categorically unenforceable. While this can be true for certain classes of employees (as discussed below), this misconception cannot be further from the truth.

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Washington, DC

Environmental Alert

(by Sloane Wildman and Ethan Johnson)

On November 10, 2025, EPA announced a proposed revision to regulations issued under Toxic Substances Control Act (TSCA) Section 8(a)(7), which would reduce certain per and polyfluoroalkyl substance (PFAS) reporting requirements for manufacturers and importers. The regulation was promulgated in October 2023 under the prior Administration and requires manufacturers and importers of PFAS in any year between 2011–2022 to report data on exposure and detrimental effects to EPA. In proposing this revision, EPA noted its reliance on Executive Order 14219, entitled “Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulatory Initiative,” which directs each agency to review and rescind existing rules based on consistency with the agency’s best reading of the governing statute, Administration policy, and cost-benefit balancing principles. EPA Administrator Lee Zeldin estimated the existing rule would have cost American businesses $1 billion in total to comply.

Specifically, EPA’s proposed revision would exempt reporting on PFAS manufactured (including imported) in mixtures or products at concentrations of 0.1% or lower. It would also exempt imported articles, certain byproducts, impurities, research and development chemicals, and non-isolated intermediates from reporting. The revision also includes technical corrections that would clarify what must be reported in certain data fields and adjust the data submission period. Notably, however, the revision will not change the 2011–2022 reporting timeframe. The proposed rule has not yet been published in the Federal Register, but once published EPA will accept comments on the proposed changes for 45 days after publication.

Babst Calland’s Environmental Practice Group is closely tracking EPA’s PFAS actions, and our attorneys are available to provide strategic advice on how developing PFAS regulations may affect your business. …

Pittsburgh, PA, Charleston, WV, and Washington, DC

Babst Calland has been recognized in the 2026 edition of Best Law Firms®, ranked by Best Lawyers®, nationally in 8 practice areas and regionally in 41 practice areas:

• National Tier 2
  • Energy Law
  • Environmental Law
  • Land Use and Zoning Law
  • Litigation – Construction
  • Litigation – Environmental
  • Mining Law
• National Tier 3
  • Natural Resources Law
  • Oil and Gas Law
• Regional Tier 1
  • Pittsburgh
    • Bet-the-Company Litigation
    • Commercial Litigation
    • Construction Law
    • Corporate Law
    • Energy Law
    • Energy Regulatory Law
    • Environmental Law
    • Land Use and Zoning Law
    • Litigation – Construction
    • Litigation – Environmental
    • Litigation – Land Use and Zoning
    • Mediation
    • Municipal Law
    • Natural Resources Law
    • Water Law
  • Charleston-WV
    • Business Organizations (including LLCs and Partnerships)
    • Commercial Litigation
    • Energy Law
    • Environmental Law
    • Litigation – Environmental
    • Oil and Gas Law
• Regional Tier 2
  • Pittsburgh
    • Information Technology Law
    • Real Estate Law
  • Charleston-WV
    • Arbitration
    • Banking and Finance Law
    • Commercial Transactions / UCC Law
    • Corporate Law
    • Mining Law
    • Natural Resources Law
  • Washington, D.C.
    • Energy Law
    • Environmental Law
    • Litigation – Environmental
• Regional Tier 3
  • Pittsburgh
    • Labor Law –

…

Pittsburgh, PA and Washington, DC

FNREL Water Law Newsletter

(by Lisa Bruderly, Mackenzie Moyer and Ethan Johnson)

On August 21, 2025, the Pennsylvania Department of Environmental Protection (DEP) announced that companies may now request expedited permit application reviews under the Streamlining Permits for Economic Expansion and Development (SPEED) program. DEP likened the new program to an amusement park “fast pass.” Eligible permit types for the SPEED program include:

• Air Quality plan approvals (state only) (Chapter 127)
• Earth Disturbance permits (Chapter 102)
  • Individual NPDES Permit
  • General NPDES Permit for Discharges of Stormwater Associated with Small Construction Activities (PAG-01)
  • General NPDES Permit for Discharges of Stormwater Associated with Construction Activities (PAG-02)
  • Erosion and Sediment Control Permit
  • Erosion and Sediment Control General Permit for Earth Disturbance Associated with Oil and Gas Exploration, Production, Processing or Treatment Operations or Transmission Lines (ESCGP-4)
• Individual Water Obstruction and Encroachment permits for project impacts eligible for coverage under the federal/state programmatic permit (PASPGP-6 or its successor) (Chapter 105)
• Dam Safety Permits (Chapter 105)

After submitting a SPEED intake form, the appropriate office will schedule and hold an intake meeting with the applicant within two to three business days.

The applicant will then have the opportunity to select a DEP-approved qualified professional to conduct the expedited review of the application. Among other qualifications, the professional must have at least five years of relevant permitting experience in Pennsylvania. The applicant must pay the qualified professional the review fee up front. The qualified professional must complete the initial review within 20% of the total review timeframe in the project work order, or another agreed upon timeframe. …

Pittsburgh, PA and Washington, DC

FNREL Water Law Newsletter

(by Lisa Bruderly, Mackenzie Moyer and Ethan Johnson)

On September 6, 2025, the Pennsylvania Department of Environmental Protection (DEP) published the Proposed Conditional State Water Quality Certification for the PASPGP-7 (SWQC), 55 Pa. Bull. 6477 (Sept. 6, 2025). The proposed conditional SWQC is for applicants seeking coverage under PASPGP-7 (the U.S. Army Corps of Engineers (Corps) Pennsylvania State Programmatic General Permit) for projects that do not require a federal license or permit other than a section 404 permit under the Clean Water Act (CWA). Comments on the SWQC were due by October 6, 2025.

DEP offered four main conditions, summarized below, that, if fulfilled, would demonstrate that a proposed activity under PASPGP-7 would comply with state water quality standards and certain provisions of the CWA:

1. Prior to beginning any activity authorized by the Corps under PASPGP-7, the applicant must obtain all necessary environmental permits or approvals and submit all required environmental assessments and other information necessary to obtain the permits and approvals.
2. The applicant must comply with required environmental assessments and other regulatory requirements.
3. Fill material may not contain any type of waste as defined in 35 Pa. Stat. § 6018.103 of the Solid Waste Management Act.
4. Applicants and projects eligible for the PASPGP-7 must obtain all state permits or approvals, or both, necessary to ensure that the project meets the state’s applicable water quality standards, including a project-specific SWQC, if needed.

As background, PASPGP-7 allows applicants to obtain both Corps section 404 permits and coverage under DEP permits or other authorizations for water obstructions and encroachments submitted to the DEP and for projects requiring permits or authorizations in this Commonwealth. …