August 11, 2020

West Virginia DHHR Proposes New TENORM Rules, Federal Grand Jury in Kentucky Indicts TENORM Shipper for Violations of Federal DOT Regulations

Environmental Alert

(by Kip Power and Varun Shekhar)

Appalachian oil and gas operators were recently reminded that proper handling, management, disposal and transportation of technologically enhanced naturally occurring radioactive material (TENORM) wastes that are generated in connection with shale gas production activities remain the focus of significant regulatory and enforcement efforts.

W.Va. DHHR TENORM Regulation. On the regulatory side, the West Virginia Department of Health and Human Resources, Bureau of Public Health (DHHR), an agency primarily involved with protecting the public and employees from radiological health risks associated with the healthcare industry, recently released proposed revisions to its legislative rule, “Radiological Health,” 64 W. Va. C.S.R. 23 (Proposed Rule). The Proposed Rule includes an entirely new Section 16, entitled “Radiation Safety Requirements for Technologically Enhanced Naturally Occurring Radioactive Material.”

In some respects, DHHR’s proposal follows the recommendations in Part N (2014) of the Conference of Radiation Control Program Directors, Inc.’s (CRCPD) “Suggested State Regulations for Control of Radiation.” However, it also varies from the CRCPD recommendations in ways that may prove troublesome, such as the inclusion of inconsistent levels of risk-based exposure limits (allowing a total effective dose equivalent of 100 mrem/year for a maximally exposed individual in one provision but limiting exposure to 50 mrem/year and 25 mrem/year in other parts). Of equal concern, the Proposed Rule appears to exceed DHHR’s legislative mandate and allows for regulation of activities in a manner that is duplicative of existing rules administered by the West Virginia Department of Environmental Protection.

The West Virginia Oil and Natural Gas Association and the Independent Oil and Gas Association of West Virginia recently filed detailed joint comments expressing these and other concerns about this proposed new TENORM regulation. …

August 10, 2020

US Fish and Wildlife Services Proposes Definition of “Habitat” under Endangered Species Act

Environmental Alert

(by Robert Stonestreet)

On August 5, 2020, the United States Fish and Wildlife Service (Service) published a proposed regulation in the Federal Register to define the term “habitat” for purposes of the Endangered Species Act (ESA). 85 FR 47333.  The ESA already defines the term “critical habitat,” which in general means areas designated as essential to preserve or promote recovery of threatened or endangered species regardless of whether those species are actually present in the area.  The term “habitat,” however, is not itself defined in the ESA or existing regulations.  The Service has been involved in years of litigation over efforts to designate as “critical habitat” certain areas where the listed species do not presently exist and could not survive under current conditions.  This proposed definition of “habitat” follows a ruling by the United States Supreme Court that an area must first qualify as “habitat” for a listed species in order for the area to be designated as “critical habitat.” Weyerhaeuser Co. v. United States Fish and Wildlife Service, 139 S. Ct. 361 (2018).

The Service proposes to define “habitat” as follows:

The physical places that individuals of a species depend upon to carry out one or more life processes.  Habitat includes areas with existing attributes that have the capacity to support individuals of the species. (emphasis added)

The Service also requests comments on the following alternative definition of “habitat”:

The physical places that individuals of a species use to carry out one or more life processes.  Habitat includes areas where individuals of the species do not presently exist but have the capacity to support such individuals, only where the necessary attributes to support the species presently exist. …

August 5, 2020

EPA Establishes Deadlines for Closing Certain CCR Surface Impoundments

Environmental Alert

(by Donald Bluedorn, Gary Steinbauer and Casey Snyder)

On July 29, 2020, United States Environmental Protection Agency (EPA) Administrator Andrew Wheeler signed a pre-publication version of a final rule (the Rule) revising portions of EPA’s 2015 coal combustion residuals (CCR) landfill and impoundment regulations. The Rule becomes final 30 days after publication in the Federal Register.

In 2015, EPA promulgated regulations implementing national minimum criteria for new and existing CCR landfills and surface impoundments. A federal appellate court partially vacated and remanded portions of these regulations on August 21, 2018 (the court’s decision is covered in more detail in our prior Alert). Following the court’s decision, EPA published proposed rules in the Federal Register on December 2, 2019 and August 14, 2019, to address the court’s remand order and make other changes (the Proposed Rules).

The Rule includes the following key changes for CCR units:

  • Reclassifies compacted-soil lined or “clay-lined” surface impoundments to “unlined,” meaning these structures must be retrofitted or closed;
  • Establishes a revised date, April 11, 2021, by which CCR units must cease receiving waste and initiate closure or retrofit because: (1) they are unlined or were formerly “clay-lined” CCR surface impoundments; or (2) they failed the minimum depth to aquifer location standard;
  • Revises the alternative closure provisions that would grant certain facilities additional time to develop alternative capacity to manage their CCR and non-CCR waste streams;
  • Updates the annual groundwater monitoring and corrective action report requirements to make the data easier to understand for public review, including adding an executive summary requirement;

    • …

July 30, 2020

New Clean Transportation Initiatives Coming to Pennsylvania

The Legal Intelligencer

(by Julie Domike and Gina Falaschi)

The transportation sector is the nation’s largest source of greenhouse gas emissions. To reduce these emissions, cleaner transportation initiatives are on the rise nationwide, with new state programs being announced almost daily. While California has always been in the forefront of these enterprises, other states, including Pennsylvania, are not far behind. This is especially true of the new clean transportation initiatives for the medium- and heavy-duty vehicle market, which produces 25% of the transportation sector emission but only represents 4% of the vehicles on the road.

At a public hearing on June 25, the California Air Resources Board adopted a long-awaited Advanced Clean Trucks Regulation. California Air Resources Board, Notice of Decision (June 25, 2020). This program builds on California’s 2012 Advanced Clean Cars Regulation to further reduce emissions from the transportation sector by requiring truck manufacturers to sell a certain percentage of zero-emission vehicles beginning in model year 2024. The percentage will increase annually, meeting the ultimate goal of phasing out new diesel trucks by 2045.

The federal Clean Air Act affords California the ability to pass historic initiatives and to be at the forefront of setting new, more stringent, environmental standards. While Section 209 of the federal Clean Air Act generally preempts state and local emission standards for new motor vehicles, there are a few exceptions. See 42 U.S.C. Section 7543(a). The EPA can waive preemption for any state that had adopted standards for control of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966. The only state that qualifies to receive such waivers is California, the only state to have adopted motor vehicle emission standards prior to March 1966. …

July 29, 2020

New PHMSA Rule Allows Rail LNG Transport

Pipeline Safety Alert

(by James Curry and Boyd Stephenson)

On July 24, 2020, the Pipeline and Hazardous Materials Safety Administration (PHMSA or the Agency) published a Final Rule (Rule) in the Federal Register allowing railroads to transport liquefied natural gas (LNG) in modified DOT-113C120W (DOT-113) railcars designed to hold cryogenic flammable liquids.  The rule was prompted by a 2017 Association of American Railroads (AAR) rulemaking petition to allow LNG transport by rail and Executive Order 13868, directing PHMSA to conduct a rulemaking allowing LNG to travel by rail tank car.  In developing the Rule, PHMSA relied on safety data from other cryogenic flammable liquid shipments and from an existing special permit that already allows limited transportation of LNG by rail to demonstrate LNG could safely be transported.  The Rule follows PHMSA’s October 24, 2019,  Notice of Proposed Rulemaking (NPRM).  It takes effect on August 24, 2020, and PHMSA is allowing immediate voluntary compliance.

The rulemaking attracted significant attention from industry eager to meet increased natural gas demand, safety organizations such as the National Transportation Safety Board that raised concerns about transporting LNG, and from environmental groups.  Numerous media reports on the Executive Order also increased public attention.  Over 450 individuals and organizations submitted comments on the NPRM.  In the NPRM and in the Rule, PHMSA noted that it lacks data about how many LNG rail shipments are likely to occur under the new rules.  Currently, cryogenic flammable gases are transported rarely by railcar, but most commenters expect LNG rail shipments to quickly outstrip shipments of other cryogenic flammable gases.

Previously, LNG could only be transported by rail tank car with a special permit, or in smaller, portable tanks loaded onto a railcar.   …

July 28, 2020

New rules mean foreign investments in U.S. real estate fall under government review

Smart Business

(by Sue Ostrowski with Boyd Stephenson)

The rules of international investment in U.S. real estate have changed, and failure to understand these new rules — issued by the Committee on Foreign Investments in the United States (CFIUS) in February — could cause huge headaches.

“If you’re not aware of or don’t understand the rules, that could cause a real estate deal to be undone by CFIUS, potentially resulting in financial harm or making a business liable to a foreign entity,” says Boyd A. Stephenson, an attorney at Babst Calland.

The president has the authority to reverse certain business transactions involving a foreign entity if it is determined they pose a national security risk. CFIUS advises the president on when to do that. In February 2020, that authority was extended to real estate ownership.

Smart Business spoke with Stephenson about the impact of the new rules.

What is CFIUS, and how does it work?

CFIUS is an interagency committee of the federal government that advises the president about mergers and acquisitions, financings, and real estate transactions that involve foreign actors. If a foreign entity wants to invest in or buy a cardboard box manufacturer, it’s generally not a concern. But if it wants to invest in a U.S. startup that’s developing technology with better AI, such an investment would result in a review from CFIUS to determine whether the deal should be cancelled based on national security concerns. This authority is retroactive, so if your deal consummates on April 15 and the transaction is reversed on May 1, you lose that equity stake.

How does the new rule extend into real estate transactions? …

July 27, 2020

Babst Calland Joins the Solar Energy Industries Association (SEIA)

Babst Calland is a member of the Solar Energy Industries Association (SEIA). A national trade association within the electric power industry, SEIA facilitates education, research, standards and collaboration with utilities, solution providers, and other energy industry leaders.

July 24, 2020

Land use regulations and validity challenges to zoning ordinances persist

The PIOGA Press

This article is an excerpt of The 2020 Babst Calland Report, which represents the collective legal perspective of Babst Calland’s energy attorneys addressing the most current business and regulatory issues facing the oil and natural gas industry. A full copy of the Report is available by writing info@babstcalland.com.

Increasing industry headwinds have resulted in a slowdown of new permitting activity and an increase in ordinance restrictions on oil and gas development. Substantive validity challenges to zoning ordinances seeking to limit development to industrial areas have continued despite Pennsylvania Commonwealth Court’s clear pronouncements that local considerations control legislative decisions as to the location of development. Pennsylvania courts have also dealt with issues such as the legal standing and the timing of ordinance challenges.

For the full article, click here.

July 24, 2020

IMPACTS OF COVID-19 ON EXISTING AND FUTURE PROJECTS

Breaking Ground

(by Marc Felezzola)

The COVID-19 pandemic has resulted in a “new normal” that was likely not accounted for in pricing and scheduling for projects awarded prior to the pandemic (“existing projects”). As owners and contractors move forward with new projects in a post-pandemic world, there is incredible uncertainty to what extent COVID-19-related requirements will impact future projects (“Future Projects”). This article addresses some of the major risks that owners and contractors face on both existing projects and future projects.

Existing Projects
A. Impacts
The forced COVID-19 shutdown and subsequent resumption of existing projects will likely result in costs to contractors for demobilization and remobilization, downtime/standby, possible material and labor escalation costs, and extended general conditions (“primary impacts”). These primary impacts typically arise with every suspension or delay to a project and are not unique to COVID-19 forced stoppages. Whether and to what extent these costs are recoverable by contractors depends on the terms of the applicable contract, and in particular its force majeure language. However, because a force majeure event is by definition an event not caused by the owner or contractor, the parties typically bear their own costs associated with the delay caused by the force majeure event. The contractor cannot recover its delay/suspension costs but does get a schedule extension; and the owner cannot recover any costs it incurs as a result of the delay. If nothing else, the contractor will almost certainly be entitled to a change order extending the project schedule for at least the length of the forced shutdown.

Beyond the primary impacts are the costs and schedule impacts associated with resuming work under drastically different circumstances. These impacts range from new social distancing requirements and correlating prohibitions (e.g., limiting use of an elevator at the job site to one worker at a time; …

July 23, 2020

Can Technology Help Us Return to Work?

Emerging Technologies in a Time of Pandemic

(by Ben Clapp, Julie Domike, Gina Falaschi, Justine Kasznica and Boyd Stephenson)

COVID-19 restrictions are both easing and tightening in cities around the country, and a nationwide return to work seems further off than it did a month ago. But it is never too early to plan ahead. As the United States looks to safely return to work, offices are preparing for a radical shift, accelerating a need for emerging technologies to address challenges in the workplace. Separation, space, health, and cleanliness concerns are paramount, in an abrupt about-face from the pre-virus trends towards flexible workspaces and open floor plans. This has created a host of novel issues for business administrators, who are leveraging technology to keep work environments safe while maintaining a semblance of business normalcy in these unprecedented times.

Click here for PDF. 

July 14, 2020

Corps Proposes New Pennsylvania State Programmatic General Permit

The Foundation Water Law Newsletter

(By Lisa M. Bruderly)

On September 4, 2020, the U.S. Army Corps of Engineers (Corps) published, for 30-day public comment, draft Pennsylvania State Programmatic General Permit 6 (PASPGP-6). See Corps, Special Pub. Notice SPN 20-57 (Sept. 4, 2020). The public notice was jointly issued by the Corps’ Baltimore, Philadelphia, and Pittsburgh Districts. PASPGP-6 would replace the current PASPGP-5, which was issued on July 1, 2016, and will expire on July 5, 2021, unless suspended or revoked prior to that date.

PASPGP-6 would be issued under section 404(e) of the Clean Water Act, 33 U.S.C. § 1344(e), which allows the Corps to issue general permits on a statewide basis for categories of activities involving discharges of dredged or fill material to “waters of the United States” (WOTUS) if the Corps determines that the activities (1) are similar in nature, (2) will cause only minimal environmental impact when performed separately, and (3) will have only minimal cumulative adverse impacts on the environment. In Pennsylvania, the Corps relies primarily on the state programmatic general permit, rather than nationwide permits, to authorize impacts to regulated waters that meet the criteria of the general permit. Projects impacting WOTUS that do not qualify for coverage under the programmatic permit must obtain an individual permit under section 404.

As discussed below, PASPGP-6 would revise PASPGP-5 in several ways that would likely impact energy projects in Pennsylvania, especially natural gas pipelines. Generally, PASPGP-6 is expected to ease permitting obligations for projects with temporary impacts, and to impose more stringent threshold eligibility and reporting requirements for projects with permanent impacts to regulated waters. The proposed general permit would also require consideration of cumulative effects of the overall project when determining whether the project required additional Corps review. …

July 14, 2020

West Virginia DEP Sued Over Coal Mine Bonding Program

Environmental Alert

(by Robert Stonestreet and Kip Power)

On May 18, 2020, we reported on a “notice of intent to sue” letter sent to the West Virginia Department of Environmental Protection (WVDEP) on behalf of three environmental interest groups concerning West Virginia’s program for bonding of coal mining operations.  As more fully explained in our May 18, 2020 article, available here, those groups demanded that WVDEP formally notify the federal Office of Surface Mining (OSM) of three events that they claimed would significantly affect the financial condition of the bonding program: (1) the insolvency of coal mine permittee “ERP Environmental Fund” and the associated receivership proceeding commenced by WVDEP; (2) an alleged lack of sufficient funding in the bonding program to cover the reclamation and water treatment costs at ERP’s operations; and (3) the potential insolvency of other mining companies.

On July 8, 2020, WVDEP formally notified OSM of the ERP proceedings, but denied that the circumstances surrounding ERP significantly affect the WVDEP bonding program.  The very next day, the three groups filed suit against WVDEP in the federal District Court for the Southern District of Virginia.  The complaint acknowledges WVDEP’s July 8, 2020 letter addressing the ERP proceedings, but alleges that the letter improperly failed to formally notify OSM of two other events the groups claim significantly affect the bonding program: (1) the bankruptcy proceedings of two other coal operators and the purported threatened insolvency of a third operator; and (2) WVDEP’s alleged inability to complete the required reclamation work at ERP’s operations with available funds.

The complaint requests that the court declare that WVDEP has failed to administer its regulatory program in accordance with the federal Surface Mining Control and Reclamation Act, and further requests entry of an order commanding WVDEP to do so.  …

July 8, 2020

Babst Calland Joins SEPA

Babst Calland is a member of the Smart Electric Power Alliance (SEPA). An educational non-profit association within the electric power industry, SEPA facilitates education, research, standards and collaboration with utilities, solution providers, and other energy industry leaders.

July 8, 2020

Energy Bar Association Welcomes Babst Calland Professional Members

Babst Calland is a member of the Energy Bar Association (EBA), an international, non-profit association established in 1946 to advance the professional excellence of those engaged in energy law, regulation and policy through professional education, exploring diverse viewpoints and building connections.

The EBA is a dynamic organization of attorney, energy professionals, students and academia interested in all facets of the practice of energy law. EBA’s mission to promote professional excellence and ethical integrity of its member in the practice, administration, and development of energy laws, regulations, and policies.

July 2, 2020

Enforceability of Oral Change Orders Despite ‘No Oral Modification’ Clauses

The Legal Intelligencer

(by James Miller and Benjamin Wright)

The recent decision in STI Oilfield Services v. The Williams Companies, Inc. f/k/a Access Midstream Partners, No. 2018-1003 C.P. (Pa. Com. Pl., Susquehanna County, March 16, 2020 Opinion), highlights the challenges those in the construction industry face when contractors or subcontractors seek additional compensation based upon an alleged oral change order or modification, even when the underlying contract contains a clear “no oral modification” (NOM) clause.

Most construction contracts contain one or more NOM clauses, including a requirement that valid change orders be in writing. Generally, these clauses provide that a contract cannot be modified absent a writing executed by the parties. This is intended to avoid having the carefully drafted written agreement of the parties set aside based on alleged oral conversations that are often supported only by memory or by piecing together evidence of conduct of the parties. Oral modifications naturally breed disagreements, misunderstandings and protracted litigation—everything a well-written contract seeks to avoid. However, Pennsylvania courts have not strictly enforced NOM clauses, especially with respect to construction contracts and alleged oral change orders for extra work.

In Universal Builders v. Moon Motor Lodge, 244 A.2d 10, 15 (Pa. 1968) the Pennsylvania Supreme Court held that, outside of a contract subject to the statute of frauds, a written “contract can be modified orally although it provides that it can be modified only in writing.” “Construction contracts typically provide that the builder will not be paid for extra work unless it is done pursuant to a written change order, yet courts frequently hold that owners must pay for extra work done at their oral direction.” “The effectiveness of a nonwritten modification in spite of a contract condition that the modifications must be written depends upon whether enforcement of the condition is or is not barred by equitable considerations, not upon the technicality of whether the condition was or was not expressly and separately waived before the non-written modification.”

Courts have significant discretion in determining whether to allow oral modification claims to survive dispositive motions and move to trial. …

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