Articles, Alerts & Perspectives

Pipeline Alert

(by James Curry, Keith J. Coyle and Brianne K. Kurdock)

On June 21, 2018, the U.S. House of Representatives, Transportation and Infrastructure Committee, Subcommittee on Railroads, Pipelines, and Hazardous Materials, held an oversight hearing related to the Pipeline and Hazardous Materials Safety Administration’s (PHMSA) implementation of the Protecting Our Infrastructure of Pipelines and Enhancing Safety Act of 2016 (2016 Act) and its predecessor, the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 (2011 Act).

The primary focus of the hearing, the first since the appointment of Howard “Skip” Elliott as the new PHMSA Administrator, was the status of several outstanding statutory mandates from the 2011 Act.  Those mandates directed PHMSA to make appropriate changes to the federal pipeline safety regulations to address the National Transportation Safety Board’s (NTSB) recommendations following its investigation of two significant pipeline accidents that occurred in 2010.

The members of the Subcommittee expressed bipartisan concern with PHMSA’s failure to satisfy the mandates from the 2011 Act, which largely address concerns that the NTSB identified following its investigation of pipeline accidents that occurred nearly eight years ago.  As Administrator Elliott acknowledged during the hearing, PHMSA has not yet made all of the changes necessary to address the mandates in the 2011 Act.  Administrator Elliott indicated that some of the mandates will be addressed in a rule relating to the safety of hazardous liquid pipelines that is in the final stages of review.

Other mandates will be addressed in a rule relating to the safety of gas transmission lines that PHMSA recently presented to the Gas Pipeline Advisory Committee, the federal advisory committee that reviews proposed changes to the gas pipeline safety regulations, for consideration.  …

Public Sector Alert

(by John A. McCreary, Jr., Robert Max Junker and Stephen L. Korbel)

In Janus v. AFSCME Council 31, ___ U.S. ___, No. 16-1466 (2018) the U.S. Supreme Court declared that Illinois’ statutory requirement for nonmembers to pay an “agency fee,” intended to support the collective bargaining related expenses of unions representing public employees, violated the First Amendment. The Janus Court reasoned that because public sector bargaining addressed and affected such matters as the allocation of scarce public resources and the cost of public services, “the union speech at issue in this case [collective bargaining and grievance/arbitration proceedings] is overwhelmingly of substantial public concern,” slip op. at 31. The compulsory payment required by Illinois law, therefore, fell squarely within the Court’s precedent prohibiting governmental compulsion of, or interference with, individual expression. The Court concluded that Illinois’ requirement that nonmembers pay agency fees to unions “violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.” Janus, slip op. at 1. The Court remanded the case to the lower court for further proceedings, which are likely to consist entirely of a damages calculation.

The Janus decision invalidates Pennsylvania’s Public Employee Fair Share Fee Law, 43 Pa.C.S.A. §1102.1 et seq. (Fair Share Law). The Fair Share Law permits public employers and the unions representing their employees to negotiate the payment of “fair share fees” by nonmembers: “If the provisions of a collective bargaining agreement so provide, each nonmember of a collective bargaining unit shall be required to pay to the exclusive representative a fair share fee.” 43 Pa.C.S.A. §1102.3. The “fair share fee” is defined as the “regular membership dues required of members of the exclusive representative, less the cost for the previous fiscal year of its activities or undertakings which were not reasonably employed to implement or effectuate the duties of the employee organization as exclusive representative.” The law requires any public employer that has agreed to fair share to deduct the amount certified by the union from the pay of each nonmember identified by the union. …

ASA’s The Contractor’s Compass

(by Marc J. Felezzola)

Although every subcontractor begins a project with full expectations of a successful project for which it will receive timely payment, the reality is that some projects encounter financial difficulties. Fortunately, the law provides subcontractors with security against those difficulties in the form of mechanic’s lien or payment bond rights (or sometimes both). This security is not absolute, however, and there are many potential pitfalls along the way about which subcontractors should be aware to ensure their right to the security provided by a lien and/or payment bond is not inadvertently lost. This article provides a general overview of the potential ways in which a subcontractor may lose its payment security during a construction project and provides some general guidance on how to avoid them.

The general concept underpinning a mechanic’s lien is that construction of a building or other structure improves the value of the real estate on which the building or structure is constructed, and therefore, those who furnish the labor and materials for the construction (collectively, “constructors”) should be allowed to put a lien on the title to the property as security for payment for their work. Importantly, the lien is against the property itself rather than the property owner, and therefore, the property serves as the collateral securing the debt owed to the constructor. Thus, in the event of nonpayment, a constructor with a mechanic’s lien can foreclose on the lien and force the sale of the property. The proceeds from that sale will then be used to pay the debt owed the constructor.

This mechanism of providing constructors security works well for privately owned property, where a change in ownership will not have a significant detriment to the general public. …

Environmental Alert

(by Robert M. Stonestreet and Christopher B. Power)

On West Virginia’s 155th birthday, the Fourth Circuit Court of Appeals vindicated the state’s approach to developing plans for improving the quality of its waterways.  The appeals court reversed a lower court decision that concluded West Virginia had failed to timely submit such plans to the federal Environmental Protection Agency (EPA) for approval, which could have required the EPA to supplant West Virginia’s role in developing those plans.  A brief background on the applicable law and circumstances of the litigation will help provide context for understanding the ruling.

The federal Clean Water Act requires states who administer approved water pollution control programs to take certain actions and make a multitude of different submissions to the EPA reflecting those actions.  These submissions include proposed water quality standards, draft permits, reports on the health of a state’s waterways, and action plans to address waterways determined to be impaired.  The Clean Water Act requires the EPA to approve or disapprove certain of these state submissions, such as plans to improve the quality of impaired waters through the development of “total maximum daily loads” for the waterbody (TMDLs).  TMDLs are essentially calculations of the maximum volume of certain pollutants that can be discharged into a waterway and still allow the waterway to achieve compliance with water quality standards – i.e. no longer be impaired.  Once a TMDL is adopted, a “waste load allocation” based on the TMDL is used to calculate effluent limits for those who hold permits to discharge into that waterbody so that the total cumulative discharged concentration of the pollutant at issue does not exceed the TMDL.

Many TMDLs address numeric water quality standards, which as the name suggests, are numeric concentrations of various substances that may exist in waterways without impairing the designated uses of the water.  …

Marcellus, Utica Shale Plays Account for 41 Percent of U.S. Natural Gas Output

The 2018 Babst Calland Report – Appalachian Basin Oil & Gas Industry: Forging Ahead Despite Obstacles; Legal and Regulatory Perspective for Producers and Midstream Operators,  the firm’s annual review of shale gas development activity in the Appalachian Basin, acknowledges an ongoing rebound despite obstacles presented by regulatory agencies, the courts, activists, and the market. To request a copy of the Report, contact info@babstcalland.com.

In this Report, Babst Calland attorneys provide perspective on issues, challenges, opportunities and recent developments in the Appalachian Basin and beyond relevant to producers and operators.

According to the U.S. Energy Information Administration’s May 2018 report, the Appalachian Marcellus and Utica shale plays account for more than 40 percent of U.S. natural gas output, compared to only three percent a decade ago. Since then, the Appalachian Basin has become recognized in the U.S. and around the world as a major source of natural gas and natural gas liquids.

The industry has been forging ahead amidst relatively low natural gas prices, infrastructure building, acreage rationalization and drilling plans that align with business expectations. The policy landscape continues to evolve with ever-changing federal and state environmental and safety regulations and tax structures along with a patchwork of local government requirements across the multi-state region.

Joseph K. Reinhart, shareholder and co-chair of Babst Calland’s Energy and Natural Resources Group, said, “This Report provides perspective on the challenges and opportunities of a shale gas industry in the Appalachian Basin that continues to enjoy a modest rebound. While more business-friendly policies and procedures are emanating from Washington, D.C., threats of trade wars are raising concerns about the U.S. …

Environmental Alert

(by Michael H. Winek, Meredith Odato Graham and Gary E. Steinbauer)

On June 7, 2018, Pennsylvania Governor Tom Wolf and Department of Environmental Protection (DEP) Secretary Patrick McDonnell announced the final issuance of air permitting documents affecting oil and gas operations in the Commonwealth.  DEP shortly thereafter released a suite of new materials to mark the latest step forward in implementing Governor Wolf’s Methane Reduction Strategy.  The new permitting documents are controversial in so far as they represent a significant departure from the status quo, requiring operators to take a fresh look at when and where an air permit may be needed.

The suite of materials recently finalized by DEP includes three key permitting documents: (1) a revised Air Quality Permit Exemption List (with substantial changes to the longstanding “Exemption 38” for well sites); (2) a revision of the existing general permit for natural gas compression and processing facilities, known as “GP-5”; and (3) a new general permit known as “GP-5A” to authorize the construction and operation of unconventional natural gas well site operations and remote pigging stations.  DEP accepted stakeholder feedback on multiple drafts before issuing the final documents, which are all effective August 8, 2018.  The agency also released various ancillary documents, including a Technical Support Document and new permit application forms.

Operators now face the challenging task of adjusting to the new permitting regime.  Although the changes to the program are generally forward-looking—affecting new or modified sources—all operators should become familiar with the applicability triggers associated with Exemption 38, GP-5, and GP-5A.  What may seem like a routine activity at a facility could have unexpected consequences for permitting purposes.  Operators will also want to become familiar with DEP’s new e-Permitting platform for GP-5 and GP-5A, as DEP believes that use of the e-Permitting system will expedite review of applications. …