Articles, Alerts & Perspectives

PITTSBURGH, PA, August 17, 2017 – Babst Calland is pleased to announce that five attorneys were selected as 2018 Best Lawyers® “Lawyers of the Year”. Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant.

The 2018 “Lawyers of the Year” in Pittsburgh, Pa. and Charleston, W.Va. include:

Kevin J. Garber, Best Lawyers 2018 Environmental Law “Lawyer of the Year”

Blaine A. Lucas, Best Lawyers 2018 Land Use and Zoning Law “Lawyer of the Year”

Joseph K. Reinhart, Best Lawyers 2018 Energy Law “Lawyer of the Year”

John A. McCreary, Best Lawyers 2018 Labor Law – Management “Lawyer of the Year”

Timothy M. Miller was named the Best Lawyers 2018 Litigation – Environmental “Lawyer of the Year” in Charleston, W.Va.

In addition, 26 attorneys were named to the 2018 Edition of The Best Lawyers in America© the most respected peer-review publication in the legal profession, in the following practice areas:

• Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law: Norman E. Gilkey
• Bet-the-Company Litigation: Mark D. Shepard, Timothy M. Miller
• Commercial Litigation: Steven F. Baicker-McKee, Mark D. Shepard, Steven B. Silverman, Timothy M. Miller, Christopher B. Power, Robert M. Stonestreet
• Construction Law: Kurt F. Fernsler, D. Matthew Jameson III, Richard J. Lolli
• Corporate Law: Frank J. Clements, Bruce F. Rudoy, Laura Stone
• Employment Law – Management: Richard J.

…

Made in PA

(by Joseph K. Reinhart)

It was only a year or so ago that the oil and gas industry had experienced what could be considered a market correction, with low commodity prices and inadequate pipeline capacity prompting energy companies to recalibrate their business plans. Even producers with strong financial reserves reduced their capital spending, which led to fewer new wells being developed. In 2016, we saw the beginning of a rebound as energy companies increased spending. Thus far in 2017, rig count has significantly expanded in the Appalachian Basin.

As the volume of natural gas and natural gas liquids produced in the Appalachian Basin grows, new downstream opportunities are being created for manufacturing industries. Shell’s 2016 announcement of plans to construct a cracker plant in Beaver County, Pa. represents just one example of the expanding market for natural gas. Many other manufacturing firms are expected to enter the region and establish businesses drawn by the energy and raw materials associated with natural gas and natural gas liquids from the Marcellus and Utica shales.

Significant changes occurring in the political landscape are expected to affect the energy industry. President Donald Trump’s administration is signaling a fundamental shift in energy policies established by former President Barack Obama. New executive orders and policies promise to lead to more pipeline development, reduced federal oversight of the oil and gas industry and increased access to oil and natural gas reserves. However, many non-governmental organizations have vowed to challenge the Trump administration’s initiatives while many state and local governments have signaled their intention to take greater measures in regulating the oil and gas industry.

Important legal developments for industry to watch include:

•Shortly after President Trump issued an executive order requiring that for every regulation passed by an administrative agency, two additional regulations must be repealed, environmental groups filed suit in federal court challenging this action. …

The PIOGA Press 

The oil and gas industry in Pennsylvania has made significant strides in recycling water in recent years. Since 2010, wastewater recycling has increased from 4.6 million barrels to more than 7.8 million barrels per year, according to a 2015 Pennsylvania Department of Environmental Protection, Bureau of Waste Management presentation on water recycling and oil and gas waste.

Given fluctuating market conditions, alternatives to recycling and reuse are also necessary. These alternatives include treatment and disposal both within and outside Pennsylvania. The wastewater disposal options in Pennsylvania have been limited in recent years by a variety of state and federal factors.

DEP asked unconventional operators to voluntarily stop sending wastewater to publicly owned treatment works (POTW) in 2010. EPA finalized a new regulation in 2016 banning unconventional oil and gas operators from sending wastewater to POTWs, a practice the federal Environmental Protection Agency noted as “current” industry practice.

Historically, there have been few injection wells constructed and permitted in Pennsylvania, and some operators have sent wastewater to Ohio and other states where injection wells are more common. Under the Safe Drinking Water Act, EPA issues the federal Underground Injection Control (UIC) permits in Pennsylvania, and then DEP issues a well permit under the Oil and Gas Act to construct a new well or alter an existing well for injection. The Common – wealth has not taken primacy over the federal UIC program. DEP, however, has recently revised its permitting process for the state permit needed to construct and operate UIC wells, revisions made in the midst of legal challenges in both state and federal courts.

EPA identified 15 UIC disposal wells in Pennsylvania, including plugged and abandoned wells and two wells pending permit approval, in its 2016 UIC well inventory. …

The Legal Intelligencer

Under the Family and Medical Leave Act (FMLA), employees may take an unpaid, job-protected leave of absence for certain family and medical reasons. Employers often find it challenging to keep track of their obligations under the FMLA. This article will help employers to avoid common problems by reviewing 10 of the top dos and don’ts.

• Do provide employees with proper notice of their rights. The FMLA applies to “covered employers.” Private companies meet this definition if they have at least 50 employees, in at least 20 weeks during the current or previous calendar year. Public agencies, elementary schools and secondary schools are also covered employers.

Covered employers are required to notify employees of their FMLA rights in two ways. First, employers should post a notice explaining the FMLA’s provisions and how to file a complaint. This posting can be electronic. Second, employers should provide written FMLA information to new employees. This information can be included in an employee handbook. Employers also may distribute this information electronically. The Department of Labor has a sample poster and notice on its website. (29 Code Fed. Regs. Section 825.300(a)).

• Don’t create new forms from scratch. The Department of Labor publishes sample FMLA forms on its website. While these forms are optional, the regulations establish a “safe harbor” for employers that choose to use them. (See 29 Code Fed. Regs. Section 825.310(d).)

• Do confirm when a rehired employee becomes eligible. FMLA leave is available to “eligible employees,” meaning employees who: work for a covered employer; have been employed for at least 12 months; have worked at least 1,250 hours within the past 12 months; and work at a location where the employer has at least 50 employees within 75 miles. …

The Legal Intelligencer

Immigration services firm Fragomen recently announced that it’s opening a new center in Pittsburgh, staffed with up to 50 employees, where it will develop or redevelop much of its software and cybersecurity technology in-house.

Fragomen’s aggressive do-it-yourself approach to technology sets it apart in the industry. But leaders at several Pennsylvania-born law firms insisted it isn’t all that different from what they’re doing themselves—even if their firms only plan to tackle so much tech innovation on their own.

“What Fragomen is attempting to do, we have it,” said David Pulice, manager of practice innovation at Reed Smith. “That’s pretty common among law firms.”

Reed Smith has created multiple apps with specific applications. Most recently, the firm launched Breach RespondeRS, which walks clients through the basic steps to take following a cyberbreach. If the problem seems complicated, the app suggests they seek legal counsel.

Duane Morris trademarked its original analytics software last year. The firm created the tool several years ago, and updates it continually to include new case data.

Blank Rome said it creates about 40 percent of its software in-house, including client-facing portals and internal applications, like a matter-tracking tool for the consumer finance group and a database for accessing information on any other platform.

Morgan, Lewis & Bockius has developed more than 50 custom applications, according to chief information officer Michael Shea, and holds a competition in which teams can suggest new technical solutions to client problems. And K&L Gates has several proofs of concept in the works to apply technology such as blockchain and artificial intelligence, said CIO Neeraj Rajpal. Dechert; Buchanan Ingersoll & Rooney; and Fox Rothschild also have developers working on various applications. …

The Critical Path 

Insurance coverage issues on commercial construction projects are complex. Add in the contractual requirement of providing additional insured status and problems can arise when tendering and accepting a defense.

This article discusses a unique insurance coverage issue which may arise in a multi-defendant property damage action involving additional insured requirements among contractors. It is common in a property damage action for a carrier to provide a defense and later file a declaratory judgment when evidence discerned in discovery establishes that no coverage existed. In these situations, the policy language and jurisdiction determines whether the insured owes defense costs to the carrier.

But what is the duty of an additional insured to reimburse the carrier for defense costs when it is subsequently determined that coverage did not exist? The additional insured has no written contract with the carrier. Moreover, what if the additional insured was provided a defense from its own carrier, only to have the defense tendered to a
different carrier based upon additional insured status? What is the obligation of the primary insurer? Let’s address this through a factual example.

The Owner hires Contractor to construct a mixed-use building and the Contractor subsequently hires a Subcontractor. The contract between Contractor and Subcontractor calls for Subcontractor to add and recognize Contractor as an additional insured to its policy.

Substantial completion is achieved and the Owner takes possession of the building despite a payment dispute between Contractor and Owner. The Contractor files suit against the Owner. The Owner claims major structural issues with the building. The Owner then files a Counterclaim for breach of contract and negligence against the Contractor and joins the Subcontractor under a negligence theory.

Contractor and Subcontractor each turn the claims over to their respective carriers, and each provide a defense under a reservation of rights. …

The PIOGA Press

The Pennsylvania Supreme Court has rejected the long-standing test for analyzing claims brought under Article I, Section 27 of the Pennsylvania Constitution, commonly known as the Environmental Rights Amendment (ERA). In its June 20, decision in Pennsylvania Environmental Defense Foundation (PEDF) v. Commonwealth, the Supreme Court set aside the test from Payne v. Kassab that has been used since 1973, and held that the Commonwealth’s oil and gas rights are “public natural resources” under the ERA and that any revenues derived from the sale of those resources must be held in trust and expended only to conserve and maintain public natural resources.

The Supreme Court’s opinion in PEDF is an important step in the ongoing judicial reexamination of the ERA. However, the impact of the court’s decision on environmental and land use issues beyond the relatively narrow facts of this case remains unclear.

Factual background

A statutory special fund in Pennsylvania known as the Oil and Gas Lease Fund holds all rents and royalties from oil and gas leases of Common wealth land. The lease fund was originally required by statute to be used “exclusively used for conservation, recreation, dams, or flood control.” In 1995, the Pennsylvania Department of Natural Resources (DCNR) became the entity responsible for making appropriations from the lease fund for projects. Between 2009 and 2015, the Pennsylvania General Assembly made a number of budgetary decisions related to the lease fund, including the enactment of Sections 1602-E and 1603-E of the Fiscal Code, which transferred control over the royalties from oil and gas leases from the DCNR to the General Assembly and required that there could be no expenditures of money in the lease fund from royalties unless that money was transferred to the General Fund by the General Assembly. …

Babst Calland announced that Timothy H. Goodman has joined the firm as shareholder in the Transportation Safety Group in the Firm’s Washington, D.C. office.

Goodman brings to clients a current and detailed understanding of the federal government’s approach to transportation safety regulation (particularly motor vehicles), including its programs and personnel as a former Federal Senior Executive (key positions just below top Presidential appointees).  Goodman spent nearly a decade at the U.S. Department of Transportation (USDOT), where he served in various capacities, including at the National Highway Traffic Safety Administration (NHTSA) and in the Secretary of Transportation’s Office of the General Counsel. As NHTSA’s Assistant Chief Counsel for Litigation and Enforcement, Goodman was the chief legal officer for the litigation and enforcement matters of the 600-plus employee federal agency. He also served as a senior trial attorney in the Secretary of Transportation’s Office of the General Counsel, where he led teams in matters throughout USDOT and across multiple transportation modes, including pipeline safety, hazardous materials, federal environmental, urban transit, motor carrier, aviation economic regulatory, and maritime matters.

Goodman is the fourth former USDOT regulatory attorney during the past 18 months to join Babst Calland’s Washington, D.C. office where former colleagues and energy attorneys from the USDOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) maintain a national Pipeline and HazMat Safety practice.  He joins us from a prominent global law firm where he focused on transportation regulatory and litigation matters.

At the DOT, Goodman was recognized for effectively working with corporate executives, senior officials and engineers to achieve practical and efficient results in high profile enforcement actions, landmark consent orders, litigations and rulemakings. He collaboratively led some of the largest civil enforcement actions and recalls in the history of NHTSA – including the largest and most complex safety recall in U.S. …

Best Lawyers

The call never seems to come at an ideal time. It is usually late in the workday or over a weekend, and it often starts with a question from an unusually tense client who asks, “Hey, we have a problem. Do you have a few minutes to talk?”

Perhaps none of my prior cases have been as notable or newsworthy as the January 2014 Freedom Industries, Inc., (Freedom) spill into the Elk River in Charleston, West Virginia.1 

The Freedom chemical storage and distribution facility was located in Charleston on the banks of the Elk River. On the morning of January 9, 2014, inspectors from the West Virginia Department of Environmental Protection arrived at the facility in response to complaints about a chemical odor. It subsequently was determined that as much as 10,000 gallons of a mixture of crude methylcyclohexanemethanol (MCHM) and polyglycol ethers (PPH, stripped) leaked from an aboveground storage tank at the facility and that some portion of the leaked chemicals flowed into the Elk River. The facility was located approximately 1.5 miles upstream of the intake for the West Virginia American Water drinking water treatment facility. The MCHM/PPH mixture was drawn into the West Virginia American Water intake on the Elk River, thereby contaminating the drinking water system. Later, on the evening of January 9, West Virginia American Water issued a “do not use” order for 93,000 customer accounts (approximately 300,000 residents) across portions of nine counties in West Virginia. After the spill, hospitals reported a noted increase in patient visits, with complaints of a number of symptoms including nausea, rashes, vomiting, abdominal pain, and diarrhea following exposure to the water through inhalation, ingestion, and/or skin contact. Residents affected by the “do not use” order were further advised to restrict their usage of tap water for drinking, cooking, and bathing for up to nine days. …

SNL

Even though a court struck down the U.S. Environmental Protection Agency’s attempted 90-day pause on oil and gas industry methane regulations, the EPA may still be able to carry out plans for a longer regulatory suspension.

The 90-day stay, which went into effect June 2 but was vacated July 3, was not the only suspension in the works for the EPA rule designed to limit methane from new and modified oil and gas sources. The agency on June 16 proposed a two-year stay on the regulation’s requirements on fugitive emissions, pneumatic pumps and professional engineer certification.

For the longer stay, the agency is taking 30 days of comment from the public on the hold. Importantly, that process uses different statutory authority with different legal standards than the ones at play for the shorter, recently reversed stay, according to Whit Swift, a partner with Bracewell LLP.

“I don’t think that [this ruling] is fatal to the longer stay that is presumably just citing the broader authority of the EPA administrator to promulgate rules as deemed necessary,” Swift said in a July 5 interview. “If you think of that as the authority for this longer stay, the court doesn’t determine the fate of the longer stay. But it does create … the confusing situation they were trying to avoid. … Now you’ve got these elements of the methane rule springing back into effect until EPA, assuming it moves forward, does stay the rule following notice and comment.”

For the 90-day stay attempt, EPA Administrator Scott Pruitt moved to put a hold on parts of the agency’s rule limiting methane emissions, saying stakeholders had not had enough time to discuss certain aspects of the final 2016 regulation. …

The PIOGA Press

This article is an excerpt of The 2017 Babst Calland Report, a report which represents the collective legal perspective of Babst Calland’s energy, environmental and pipeline safety attorneys addressing the most current business and regulatory issues facing the oil and natural gas industry. A full copy is available by writing info@babstcalland.com.

The second half of 2016 was marked by several significant federal air program developments as the Environmental Protection Agency (EPA) raced to implement President Barack Obama’s Climate Action Plan before the change in administration. The final New Source Performance Standards (NSPS) for oil and natural gas production, processing, transmission and storage activities, which established first-time methane requirements, went into effect on August 2. By then, lawsuits were already well underway to challenge the 2016 NSPS and EPA’s authority to regulate methane emissions.

In October, EPA finalized the “Control Techniques Guide – lines” (CTG) directing state and local air agencies to reduce volatile organic compound (VOC) emissions from existing oil and natural gas industry sources in areas with ozone problems (including all of Pennsylvania). It is anticipated that Pennsylvania will adopt regulations to implement the CTG in the Commonwealth within the next few years.

In November, EPA issued a final Information Collection Request (ICR) to gather information for the agency to develop a federal rule to limit methane emissions from existing sources. The final ICR set in motion a flurry of activity as more than 15,000 owners and operators were tasked with submitting extensive information to EPA in a short timeframe. For many companies, the ICR presented an enormous challenge due to its broad scope, complex EPA reporting forms and significant compliance costs. Also in November, EPA finalized additional revisions to the Petroleum and Natural Gas Systems source category of its Greenhouse Gas Reporting Rule. …

The Legal Intelligencer

The Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101 et seq., authorizes municipalities to engage in land use planning and implement land use controls through a number of mechanisms, including comprehensive plans, official maps, zoning ordinances, subdivision and land development ordinances and planned residential developments. On May 9, the Commonwealth Court rendered a decision in Delchester Developers v. Zoning Hearing Board, 2017 Pa. Commw. Ct. LEXIS 192 (Pa. Commw. Ct. 2017), concluding, among other things, that stormwater management ordinances are not land use ordinances governed by the MPC.

In Delchester Developers, Delchester Developers L.P. submitted a preliminary land development plan application to the township of London Grove seeking approval to develop commercially two lots located within the township’s Groundwater Protection Overlay District. The overlay district encompasses a threatened geological formation in the township that allows water to move quickly through it. In recognition of the threat to and challenges posed by the geological formation, the township board of supervisors adopted stringent stormwater management regulations applicable in the overlay district to ensure recharge, prevent sinkhole formation and protect the groundwater from contamination.

In order to effectuate its plans, Delchester sought several variances and special exceptions from the township’s zoning hearing board, and brought challenges to the substantive validity of various township ordinances, including the township’s stormwater management ordinance (SWMO). The township zoning hearing board denied all of Delchester’s requests. The zoning hearing board rejected Delchester’s substantive validity challenge to the SWMO, concluding that because the SWMO is not a land use ordinance under the MPC, the zoning hearing board lacked jurisdiction over the challenge. The trial court affirmed.

Section 909.1(a)(1) of the MPC confers upon a zoning hearing board exclusive jurisdiction to hear and render final adjudications on “substantive challenges to the validity of any land use ordinance,” …