Articles, Alerts & Perspectives

Environmental Alert

(by Robert Stonestreet)

On December 16, 2020, the United States Fish and Wildlife Service (Service) adopted a final regulation to define the term “habitat” for use when designating “critical habitat” areas under the Endangered Species Act (ESA). 85 Fed Reg 81411.  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 pre-existing regulations.  As detailed in the Environmental Alert published on August 10, 2020 (available here), the Service proposed two potential “habitat” definitions on August 5, 2020 for public comment. 85 Fed Reg 47333.  In the final rulemaking, the Service chose to adopt a “habitat” definition that is markedly different than the two definitions proposed for public comment back in August.  The adopted definition reads as follows:

For the purposes of designating critical habitat only, habitat is the abiotic and biotic
setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.

According to the Service, “[a]biotic means derived from non-living sources such as soil, water, temperature, or physical processes” and the term “biotic” means “derived from living sources such as a plant community type or prey species.”  The preamble portion of the Federal Register entry notes that the phrase “resources and conditions” is intended to clarify that habitat “is inclusive of all qualities of an area that can make that area important to the species.”

Compare that definition to the two definitions proposed for public comment on August 5, 2020, which appear below:

Primary Proposed Definition:  The physical places that individuals of a species depend upon to carry out one or more life processes. …

Environmental Alert

(by Lisa Bruderly and Tim Bytner)

On December 10, 2020, U.S. EPA issued for public comment its draft guidance (Draft Guidance) regarding the U.S. Supreme Court’s County of Maui “functional equivalent” analysis within the Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) program (85 Fed. Reg. 79489). The comment period closes on January 11, 2021.

In County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020), the Supreme Court held that a NPDES permit is required in instances when a point source discharge of a pollutant through groundwater to a navigable water is the “functional equivalent” of a direct pollutant discharge from a point source into a navigable water. Babst Calland discussed the Supreme Court’s April 23, 2020 decision, and its far-reaching implications, in its May 11, 2020, PIOGA Press article titled “Potential Clean Water Act Liability Extends to Discharges to Groundwater That Reach Surface Water.”

The Supreme Court offered a non-exclusive list of seven factors to consider on a case-by-case basis:

• Transit time;
• Distance traveled;
• Nature of the material through which the pollutant travels;
• Extent to which the pollutant is diluted or chemically changed as it travels;
• Amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source;
• Manner by or area in which the pollutant enters the navigable waters; and
• Degree to which the pollution (at that point) has maintained its specific identity.

Emphasis on Threshold Requirements for NPDES Permits

The Draft Guidance stresses that the County of Maui decision did not change the structure of the NPDES permit program, and, at most, only adds another step in determining whether a NPDES permit is required under a limited number of scenarios. …

Environmental Alert

(by Lisa Bruderly)

On December 5, 2020, the Pennsylvania Environmental Quality Board (EQB) published in the Pennsylvania Bulletin proposed revisions to more than 30 provisions of the dam safety and waterway management regulations under 25 Pa. Code Chapter 105. The public comment period will remain open until February 3, 2021.

The revisions will significantly amend the Pennsylvania Department of Environmental Protection (PADEP) regulations regarding the permitting of obstructions and encroachments of waters of the Commonwealth under Chapter 105. The proposed revisions are expected to create expansive new requirements, almost certainly increasing the time and effort required to complete individual/joint Chapter 105 permit applications.  These new requirements, if promulgated, will also likely increase PADEP application review times, particularly at the outset when the agency and the regulated community are becoming familiar with the new requirements.  Additionally, revised compensatory mitigation criteria could expand the extent of mitigation required for a project.  On the other hand, the addition of six new permit waivers means that certain projects may no longer be required to obtain a Chapter 105 permit.

According to the public comment notice, other revisions include adding or changing 18 definitions, adding antidegradation and cumulative impact subsections to the applicant information requirements, providing a new option for dam owners to satisfy proof of financial responsibility obligations, amending the wetland replacement criteria regarding compensatory mitigation for unavoidable impacts to aquatic resources, and adding new structures and activities that may be exempt from submerged lands licensing charges.

The proposed revisions to Chapter 105 have been anticipated for more than one year. In anticipation, PADEP solicited input from multiple Commonwealth agencies and commissions. It also consulted  its Agricultural Advisory Board, Water Resources Advisory Committee and Citizens Advisory Council. …

Environmental Alert

(by Matt Wood and Colleen Grace Donofrio)

On November 25, 2020, Governor Tom Wolf signed ACT 127 of 2020 (House Bill 1808), which, when effective on January 24, 2021, will amend Pennsylvania’s Solid Waste Management Act (SWMA) to support advanced plastics recycling operations in the Commonwealth by exempting qualifying operations from the waste management requirements.  ACT 127 accomplishes this by amending the SWMA to exempt the conversion of plastics at facilities with advanced recycling processes from the waste “processing” and “treatment” requirements under the SWMA and its implementing regulations.  These facilities turn hard-to-recycle plastics (e.g., plastic bags, wrappers, PVC 3, LDPE 4, PP 5, PS 6, Other 7) into useable raw materials and products.

Specifically, ACT 127 amends the SWMA to define:

• “Post-use polymers” – post-use plastics from residential, municipal, or commercial sources that would not otherwise be recycled and, when converted using advanced recycling, are not considered waste.
• “Advanced recycling” –  a manufacturing process whereby post-use polymers are converted into basic hydrocarbon raw materials, feedstocks, chemicals, liquid fuels, waxes, lubricants, and other related products.  Conversion processes include, but are not limited to, pyrolysis, gasification, depolymerization, catalytic cracking, reforming, and hydrogenation.
• “Advanced recycling facility” – receives, separates, stores, and converts post-use polymers into raw materials and products.

Facilities coming under the exclusion are not regulated as waste “processing” or “treatment” facilities but still need to comply with all other applicable environmental requirements (e.g., air, water).  Facilities that only perform a portion of these services (e.g., segregation facilities) do not qualify for the exemption from the waste requirements.

ACT 127 is likely to attract new advanced recycling businesses to Pennsylvania and thereby foster job creation, drive investment and innovation, and create regulatory certainty, with the added benefit of recycling more plastics.  …

Energy Alert

(by Tim Miller and Katrina Bowers)

The United States Court of Appeals for the Fourth Circuit (Fourth Circuit) has vacated a judgment of the United States District Court for the Northern District of West Virginia that held an oil and gas lease failed to sufficiently indicate the method for calculating post-production costs to be deducted from royalty payments pursuant to West Virginia law. The lease provided that the lessor would bear some part of the post-production costs and contained a detailed list of post-production expenses that were deductible from royalties, but the District Court held the accounting methodology was not sufficiently disclosed. In Young v. Equinor USA Onshore Properties, Inc., No. 19-1334 (4th Cir. Dec. 1, 2020), the Fourth Circuit held that West Virginia law does not require that an oil and gas lease set out an “Einsteinian proof” for calculating post-production costs and, in fact, could be satisfied by a simple formula. In holding that the lease sufficiently indicated the method for calculation in compliance with West Virginia law, the Fourth Circuit explained that the method was to add all the identified, reasonable, and actually incurred post-production costs, deduct them from the lessee’s gross proceeds, and then adjust for the lessor’s share of the total pooled acreage and royalty rate. This opinion also questions the continued viability of the West Virginia Supreme Court’s holding in the Estate of Tawney v. Columbia Nat. Res., LLC, 219 W. Va. 266, 633 S.E.2d 22 (2006) in light of critical comments in a subsequent royalty case decided by the West Virginia Supreme Court in 2017, Leggett v. EQT Prod. Co., 238 W. Va. 264, 800 S.E.2d 850 (2017). …

Emerging Technologies Perspective

(by Ashleigh Krick)

On November 9, 2020, the Federal Trade Commission (FTC) announced a settlement agreement with Zoom Video Communications, Inc. (Zoom) that arose from alleged violations that Zoom engaged in a series of deceptive and unfair practices that undermined user security.

The FTC found that Zoom made several representations across its platform regarding the strength of its privacy and security measures used to protect users’ personal information that were untrue and provided users with a false sense of security. Specifically, the FTC found that Zoom made multiple statements regarding “end-to-end” and “AES 256-bit” encryption used to secure videoconference communications. However, Zoom did not provide end-to-end encryption for any Zoom meeting conducted outside of Zoom’s “Connecter” product. And, Zoom used a lower level of encryption that did not provide for the same level of security as “AES 256-bit” encryption. The FTC also found that Zoom stored meeting recordings unencrypted and for a longer period than Zoom claimed in its Security Guide. And, Zoom circumvented browser privacy and security safeguards through software updates without notice to users and without establishing replacement safeguards.

Click here for PDF.

Employment Alert

(by Alexandra Farone)

At the end of October 2020, the Allegheny County Council and Pittsburgh City Council each passed bills entitled “Creating a Respectful and Open World for Natural Hair Acts,” prohibiting hairstyle-based discrimination in employment, housing, and public accommodations. Protective and cultural hair textures and hairstyles, including braids, cornrows, locs, Bantu knots, Afros, and twists, are now protected under these new laws, known as the CROWN Acts. Employers in Allegheny County should review their dress codes and grooming standards to ensure compliance with the CROWN Acts.

The two CROWN Acts are nearly identical. The Allegheny County CROWN Act defines “hairstyle” as “any characteristic, texture, form, or manner of wearing an individual’s hair if such characteristic, texture, form or manner is commonly associated with a particular race, national origin, gender, gender identity or expression, sexual orientation, or religion.”

The Pittsburgh CROWN Act defines “hairstyle” as “hair texture and styles of hair of any length, such as protective or cultural hairstyles, natural hairstyles, and other forms of hair presentation.” Mayor Bill Peduto submitted the CROWN Act for the City Council’s consideration earlier in October, citing the 2019 report of Pittsburgh’s Gender Equity Commission that found inequities and barriers facing people of color—especially women—in the city regarding their hairstyles and natural hair.

Individuals within the City of Pittsburgh seeking to make claims of discrimination based on hairstyle can report the matter to the City’s Commission on Human Relations, the agency tasked with enforcing the CROWN Act. The Commission has released extensive guidance for information regarding the CROWN Act in the employment, housing, and public accommodation sectors.

If you have any questions about the impact of the CROWN Acts, particularly on your existing personnel policies, please contact Alexandra G. …

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