August 25, 2023

EPA Deletes Emergency Affirmative Defense Provisions from its Clean Air Act Title V Permitting Program Rules

Washington, DC

Legal Intelligencer

(by Varun Shekhar)

The U.S. Environmental Protection Agency (EPA) has finalized rulemaking originally proposed in 2016 to remove “emergency” affirmative defense provisions from its Clean Air Act (CAA) permitting regulations for “major sources”.  On July 21, 2023, EPA published a Final Rule amending 40 C.F.R. §§ 70.6 and 71.6 to delete the emergency affirmative defense provisions in light of decisions from the U.S. Court of Appeals for the DC Circuit.

The emergency affirmative defense provision under 40 C.F.R. Parts 70 and 71 originated from rulemaking promulgated by EPA in 1992.  This rulemaking was intended to implement the 1990 amendments to the CAA which established Title V, including requirements for operating permitting programs as applicable to among other things, “major sources”.  The CAA defines a major source as “any stationary facility or source of air pollutants which directly emits, or has the potential to emit, one hundred tons per year or more of any air pollutant…”.  In addition, the CAA also includes as major sources those “that emit[] or ha[ve] the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants.”

As part of the 1992 rulemaking, EPA included at 40 C.F.R. §§ 70.6(g) (for state operating permitting programs) and 71.6(g) (for federal operating permitting programs) provisions allowing for an operator to assert an affirmative defense for any unavoidable noncompliance with technology-based emission limits in the event of “any situation arising from sudden and reasonably unforeseeable events beyond the control of the source, including acts of God, which situation requires immediate corrective action to restore normal operation…”.  These provisions also required the operator to keep contemporaneous operating logs or other evidence documenting the occurrence of the emergency event, that the facility was at the time of the event being properly operating, that it took all reasonable steps to minimize emissions, and that notice of the emergency was submitted to the applicable permitting authority within two business days of the exceedance of the emission limit.  …

August 18, 2023

Federal CCR Regulatory Update: EPA Adds CCR To National Enforcement and Compliance Initiatives and Proposes to Deny Alabama’s CCR Permit Program

Pittsburgh, PA

Environmental Alert

(by Don Bluedorn, Gary Steinbauer and Mackenzie Moyer)

In the past week, the U.S. Environmental Protection (EPA) has made two major announcements related to the regulation of Coal Combustion Residuals (CCR). On August 17, 2023, EPA announced its National Enforcement and Compliance Initiatives for fiscal years 2024 through 2027, adding “protecting communities from coal ash contamination” to a list of six priority areas for enforcement. Three days earlier, EPA published notice in the Federal Register of its proposal to deny Alabama’s application to administer its own CCR permitting program in lieu of EPA’s federal CCR program. These developments are among other CCR-related regulatory proposals from EPA earlier this year and a sign that EPA’s focus on CCR regulatory and enforcement will continue.

EPA Adds Coal Ash Contamination as an Enforcement Initiative

Every four years, EPA publishes a list of national initiatives to focus its enforcement efforts. On January 12, 2023, EPA published notice in the Federal Register, seeking comment on the NECIs for fiscal years 2023 to 2027. 88 Fed. Reg. 2093. In this notice, EPA listed “Addressing CCR” as one area “for further consideration of possible development” as an NECI. EPA has now formally adopted CCR issues as an enforcement priority for the next four years, all but guaranteeing that EPA will prioritize CCR enforcement and compliance over the next several years.

EPA Proposes to Deny Alabama’s CCR Permit Program

On August 14, 2023, the U.S. Environmental Protection Agency (EPA) published notice of its proposed denial of Alabama’s application to operate its own Coal Combustion Residuals (CCR) permit program in the Federal Register. …

August 17, 2023

Public-Posting: Penncrest, Boyer, and the Release of Social-Media Under the RTKL

Pittsburgh, PA

Legal Intelligencer

(by Harley Stone and Anna Jewart)

Have Facebook and TikTok become the new forum for conducting  political debates by public officials? That’s at least one of the questions faced by the Commonwealth Court in two recent decisions, Penncrest School District v. Cagle, 293 A.3d 783 (Pa. Cmwlth. 2023), and Wyoming Borough v. Boyer, No. 715 C.D. 2021 (Pa. Cmwlth. July 27, 2023).  As public engagement continues to move “online” the topic of how to treat public officials’ emails, text messages and social media pages has become a hot button topic.  Earlier this year, in Penncrest, the Court considered  what to do about these developing issues.  In a June 2021 RTKL request, the requester in Penncrest sought Facebook posts and comments “related to homosexuality and Penncrest School District, its officials, employees, or students or its curriculum, physical [resources], or electronic resources… including posts or comments removed” or deleted by two specific members of the school board for a specific time period.  The respondent district denied the request on the basis that no such posts or comments existed for any Penncrest-owned Facebook accounts.  On appeal, the OOR determined it was immaterial as to whether the agency controlled the Facebook page, but that it would review the contents of the page to determine whether it was used as a significant platform by an elected official or employee to conduct or discuss official business.  The lower court affirmed and reasoned it did not matter if the posts were made on the district’s Facebook account or a member’s private account. The court reasoned that the posts became a “record” if created by persons acting as school board members and if they contained information related to school business. …

August 17, 2023

Five Babst Calland Attorneys Named as 2024 Best Lawyers in America® “Lawyer of the Year”, 37 Selected for Inclusion in The Best Lawyers in America®, and 18 Named to Best Lawyers: Ones to Watch® in America

Pittsburgh, PA, Charleston, WV and Washington, DC

Babst Calland is pleased to announce that five lawyers were selected as 2024 Best Lawyers in America® “Lawyer of the Year” in Pittsburgh, Pa. and Charleston, W. Va. (by BL Rankings). 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.

Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, professionalism, and integrity. Those named to the 2024 Best Lawyers in America® “Lawyer of the Year” include:

James V. Corbelli – Litigation – Environmental in Pittsburgh, Pa.

Blaine A. Lucas, Municipal Law “Lawyer of the Year” in Pittsburgh, Pa.

Kevin J. Garber – Natural Resources Law in Pittsburgh, Pa.

Steven B. Silverman – Information Technology Law in Pittsburgh, Pa.

Christopher “Kip” Power – Mining Law in Charleston, W.Va.

View the award recipients here.

In addition, 37 Babst Calland lawyers were selected for inclusion in the 2024 edition of The Best Lawyers in America® (by BL Rankings), the most respected peer-reviewed publications in the legal profession:

  • Chester R. Babst III – Environmental Law, Litigation – Environmental
  • Donald C. Bluedorn II – Environmental Law, Litigation – Environmental, Water Law
  • Joseph G. Bunn – Commercial Transactions / UCC Law, Mining Law, Banking and Finance Law, Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law, Business Organizations (including LLCs and Partnerships), Corporate Law, Mergers and Acquisitions Law
  • Dean A.

    • …

August 16, 2023

The Form I-9: Refresher and Reminder of Recent Changes

Pittsburgh, PA

PIOGA Press

(By Alex Farone)

Recent changes to the Form I-9 and its completion procedures have brought employee onboarding to the forefront for many employers. This article provides a primer on the Form I-9 generally, recent changes to the process, and tips to address instances of non-compliance.

What is the Form I-9?

On November 6, 1986, the Immigration Reform and Control Act was enacted to require employers to verify the identity and employment eligibility of their employees to work in the United States and created criminal and civil penalties for employer violations. The Form I-9 is a required form issued by U.S. Citizenship and Immigration Services of the Department of Homeland Security (DHS) used to document this verification. A new model Form I-9 was released on August 1, 2023, though the previous Form I-9 may still be utilized through the end of October. The new Form I-9 has two sections (Section 1 for employee information and attestation, and Section 2 for employer review and verification) and two supplements (Supplement A for preparer/translator certification for Section 1, and Supplement B—formerly Section 3 on the previous Form I-9—for reverification and rehire).

The employee must complete Section 1 no later than the employee’s first day of employment, which involves providing their name, address, date of birth, social security number, contact information, citizenship/immigration status, and signature. The employer must complete Section 2 within three business days after the employee’s first day of employment. Section 2 requires the employee to provide the employer with unexpired, original documentation specified on the List of Acceptable Documents such as a passport, driver’s license, or social security card, to establish their identity and authorization to legally work in the United States. …

August 4, 2023

Legislative & Regulatory Update

Pittsburgh, PA

The Wildcatter

(By Nikolas Tysiak)

In Collingwood Appalachian Minerals III, LLC v. Erlewine, — S.E.2d —, 2023 WL 4013373 (June 15, 2023), the West Virginia Supreme Court heard another case that contributes to the ongoing saga surrounding oil and gas rights being sold at tax sale. This case is a bit unique, in that there is both a language interpretation issue and a tax sale issue presented. The tract at issue contains 135 acres. In 1909, J. E. Huff conveyed the land to James Sivert, reserving ½ the oil and gas. James Sivert conveyed the land to Joseph and Myrtle Rogers in 1944, reserving ¼ the oil and gas. The Rogerses conveyed the land to Osborn Dunham in 1945, reserving from the conveyance “all exceptions and reservations contained in all prior deeds”. Meanwhile, James Sivert conveyed his ¼ oil and gas interest to Joseph Palmer also in 1945, who then conveyed such ¼ oil and gas interest to Osborn Dunham in November of 1945. As of 1945, Osborn Dunham held ½ the oil and gas and all of the surface as to the 135 acres. Critically, beginning in 1930, James Sivert was assessed for the surface and ½ the oil and gas separately. Upon his reservation of ¼ oil and gas in 1944, the Rogerses and Sivert were each assessed for ¼ oil and gas under the land.

In 1968, Dunham conveyed to Russell F. Stiles “the same land” as received by him in 1945. Following this deed, Stiles became assessed for the surface and ¼ oil and gas, while Stiles became assessed for another ¼ oil and gas. Royalties were also paid in accordance with this division of oil and gas rights. …

August 1, 2023

EPA Adds Nine PFAS Chemicals to the Toxics Release Inventory Reporting List

Pittsburgh, PA

Environmental Alert

(by Matt Wood and Mackenzie Moyer)

On June 23, 2023, the U.S. Environmental Protection Agency (EPA) published a final rule updating the Toxics Release Inventory (TRI) chemical list to add nine more per- and polyfluoroalkyl substances (PFAS).  This update, applicable starting in the 2023 reporting year, requires facilities subject to TRI reporting obligations that manufacture, process, or otherwise use any of the newly added PFAS in quantities exceeding 100 pounds in 2023 to report such uses to EPA by July 1, 2024 (and in future years, as applicable).  The final rule increases the total number of TRI-listed PFAS to 189.  The nine PFAS added to the TRI chemical list are available here and the complete list (through reporting year 2022) is available here.

PFAS compounds or classes of PFAS are automatically added to the TRI effective January 1st of the calendar year following the occurrence of certain “triggers” enumerated in the National Defense Authorization Act for Fiscal Year 2020 (2020 NDAA), which was signed into law on December 20, 2019.  Those triggers include the date on which: (1) EPA finalizes a toxicity value for the PFAS; (2) EPA makes a covered determination for the PFAS, i.e., a determination made by rule under the Toxic Substances Control Act (TSCA) section 5(a)(2) that a use of a PFAS or class of PFAS is a significant new use; (3) the PFAS is added to a list of substances covered by a covered determination; or (4) the PFAS to which a covered determination applies is added to the list published under section 8(b)(1) of TSCA and is designated as an active chemical substance under TSCA § 8(b)(5)(B).  …

August 1, 2023

New laws meant to protect consumer data will affect nearly all companies

Pittsburgh, PA

Smart Business

(By Adam Burroughs featuring Ember Holmes)

Several states have passed or are in the process of implementing data privacy laws, largely in an effort to put control of consumers’ information back into the hands of the consumer.

Four states — California, Colorado, Connecticut and Virginia — have data privacy laws that are already in effect. There also are states — Indiana, Iowa, Montana, Tennessee, Texas and Utah — where the laws have been passed and are set to go into effect at some point in the next three years. Additionally, there are six states — Delaware, Massachusetts, New Jersey, North Carolina, Oregon and Pennsylvania — where bills relating to data privacy have been introduced and are at different stages of the legislative process.

“One common theme of the various laws is to shift the default for companies that collect and sell consumer data from assumed, passive consent to express, active consent,” says Ember K. Holmes an Associate at Babst Calland. “These laws also give consumers the right to opt out of having their data collected, or to have their data deleted if it has already been collected.”

While the aim of these laws is similar, each is unique. That’s making it difficult for companies across sectors to understand how these laws affect their business and avoid what are often significant penalties for noncompliance.

Smart Business spoke with Holmes about data privacy laws states are enacting and how they are going to affect companies.

Why might data privacy laws in one state affect a company that’s headquartered in another?

Although Pennsylvania does not have a robust body of privacy laws, organizations may have obligations under the privacy laws of other states. …

July 26, 2023

EPA Proposes to Usurp State’s Judgment and Standards for Stream Impairment Classification

Charleston, WV

Environmental Alert

(by Robert Stonestreet and Kip Power)

The federal Environmental Protection Agency (EPA) has taken rare action in proposing to not only supersede the role of the West Virginia Department of Environmental Protection (WVDEP) in addressing water quality conditions in the state, but also seeking to impose a new standard for determining how to classify the biological health of West Virginia waters. Under Section 303(d) of the federal Clean Water Act, state governments are required to identify, every three years, waters within their borders that do not meet designated water quality standards. Such waters are deemed “impaired” for the water quality standards exceeded and are placed on what is known as a “303(d) List.” That list must include waters that fail to meet numeric water quality standards – i.e., specific concentrations of iron, aluminum, and other substances. Waters can also be “impaired” for failure to comply with “narrative” water quality standards – i.e., narrative descriptions of certain prohibited conditions, such as distinctly visible foam, sludge deposits, foul odors, or discoloration. West Virginia’s narrative standards also provide that waters can be considered “biologically impaired” if they contain “materials in concentrations which are harmful, hazardous, or toxic to man, animal or aquatic life.”

When a stream is placed on the 303(d) List, it is put in line for the development of a pollution reduction plan (known as a “total maximum daily load” or “TMDL”). Among other things, a TMDL results in more restrictive permit limits for discharges associated with the parameters deemed to be contributing to the impairment.

For more than 20 years, the WVDEP has used the West Virginia Stream Condition Index (WVSCI) as the primary methodology for evaluating whether a stream is “biologically impaired.” Under WVSCI, a stream is considered impaired if it does not support a certain volume and diversity of insects and other aquatic life even if the stream meets all numeric water quality standards. …

July 20, 2023

The New Privacy Shield – European Commission Adopts the EU-U.S. Data Privacy Framework

Pittsburgh, PA

Firm Alert

(by Ember Holmes and Justine Kasznica)

On July 10, 2023, the European Commission (EC) adopted the European Union-United States Data Privacy Framework (DPF), an adequacy decision concluding that the U.S. has adequate data privacy and security infrastructure in place for secure transfer of personal data from the European Economic Area (EEA), which is comprised of the 27 European Union Member States, Norway, Iceland, and Liechtenstein, into the U.S. Prior to the adoption of the DPF, in order to transfer data from the EEA to the U.S., organizations in the U.S. were required to use one of the EC-approved safeguards, such as standard contractual clauses or binding corporate rules. These safeguards, set forth in Article 46 of the General Data Protection Regulation (GDPR), are onerous and complicated. The DPF allows for the safe and secure flow of data for U.S. multinational corporations and organizations doing business with those in the EEA. The importance of this data flow cannot be overstated – organizations across all sectors, whether large or small, will have equal opportunity to participate in the digital economy and to engage in streamlined international commerce.

There are three branches of the DPF – the EU-U.S. DPF, the Swiss-U.S. DPF, and the UK Extension to the EU-U.S. DPF. With the July adoption of the EU-U.S. DPF by the EC, the EU-U.S. DPF permits flow of information from the E.U. to the U.S. The Swiss-U.S. DPF and UK Extension to the EU-U.S. DPF will enable personal data transfers from those jurisdictions if and when the Swiss and UK Governments officially recognize the adequacy decision.

In the U.S., the DPF is implemented and administered by the U.S. Department of Commerce (DOC), and on July 17, 2023, the DOC launched the Data Privacy Framework program website. …

July 18, 2023

Where Can a Corporation Be Sued For, Well, Anything? (An Evolving Test)

Pittsburgh, PA

Litigation Alert

(By Christina Manfredi McKinley and Joseph Schaeffer)

The 14th Amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Am. XIV § 1. For corporations, the question of what constitutes due process—and specifically, where the corporation can be sued for conduct unrelated to corporation’s conduct in the forum (i.e., “general personal jurisdiction”)—has continued to evolve. Indeed, over the last century, the Supreme Court’s jurisprudence has contracted the available fora in which a corporation can be subjected to general personal jurisdiction, culminating in 2014 with the concept that there are only two locations in which a corporation is “at home” for general jurisdiction purposes:  where it is incorporated or where it maintains its principal place of business. This test has been a practical one, and has provided both (some degree of) certainty to corporate defendants and a disincentive to otherwise-inclined forum shoppers.

At the close of this past term, however, the Supreme Court in Mallory v. Norfolk Southern Railway Co.[1] rejected a due process challenge to a Pennsylvania law that requires out-of-state corporations to submit to general jurisdiction in the Commonwealth as a condition of registering to do business within Pennsylvania.

The concept of “personal jurisdiction” is an important one in the law. It refers to the ability of a court to take an action that is binding on parties in front of it.[2] A court that has “general jurisdiction” over a defendant can entertain any cause of action against that defendant, irrespective of whether the defendant’s complained-of conduct has a nexus to the forum. …

July 17, 2023

D.C. Circuit Decision Vacates PHMSA’s Final Rule Applied to Gathering Lines

Pittsburgh, PA and Washington, DC

PIOGA Press

(By Christina Manfredi McKinley and Keith Coyle)

On May 16, 2023, the D.C. Circuit issued a decision vacating in its entirety a challenged piece of a rule related to safety valve requirements for gas gathering lines. That decision, GPA Midstream Association and American Petroleum Institute v. United States Department of Transportation and Pipeline and Hazardous Safety Administration, held that the agency violated the Administrative Procedure Act and acted arbitrarily and capriciously when it failed to explain, let alone consider, why the rulemaking’s safety standard would be practicable and make sense for regulated gathering lines until issuing the final rule, when there could be no peer review or public comment.

In 2020, PHMSA published a notice of proposed rulemaking to comply with a Congressional directive to the agency to consider the use of valve, or automatic shutoff technology, on gas transmission lines. But the notice of proposed rulemaking and risk assessment said nothing about the costs and benefits of applying the standard to gathering pipelines. Nevertheless, because of certain pre-existing rules, new or replaced regulated gathering lines would have been subject to the proposed standard unless expressly carved out by the rule.

As such, in their comments to the proposed rule, the Petitioners sought an exemption for gathering pipelines. Among other things, they argued the risk assessment lacked the cost-benefit data needed to justify applying the rule to gathering pipelines. Knowing these objections, PHMSA proceeded with the rulemaking anyway. In the final rule’s preamble, PHMSA addressed some of the objections. It pointed out that the proposed rule never said regulated gathering lines would be exempt—which is correct because the proposed rule said nothing at all—and it included some data about gathering lines in the final rule’s risk assessment. …

June 29, 2023

Companies face uncertainties as governments crack down on PFAS

Pittsburgh, PA

Smart Business

(By Adam Burroughs featuring Jean Mosites)

Fluorinated chemicals, or per- and polyfluoroalkyl substances (PFAS), are a large and diverse family of chemical compounds used in myriad consumer, commercial and industrial products. Because these “forever chemicals” do not break down and tend to accumulate when released into the environment, numerous state and federal agencies are emphasizing, and increasingly enforcing, new waste and water management practices.

“They’re attempting to significantly reduce PFAS compounds that may be present in water, air, soil and many products to mitigate any health-related risks that may come with them,” says Jean M. Mosites, shareholder and co-chair of the Environmental Practice Group at Babst Calland. “Because of this, businesses are facing regulatory uncertainty, high costs of mitigation, and the potential for class-action litigation amidst increasing public awareness.”

Smart Business spoke with Mosites about the uncertainties facing businesses as governments work to address the known or suspected impacts of PFAS.

How have government regulations changed recently?

Recently, the Environmental Protection Agency (EPA) laid out a whole-of-agency approach to addressing PFAS. The roadmap sets timelines by which the agency plans to take specific actions and commit to bolder new policies.

Some states have already enacted laws regulating the presence of PFAS in drinking water, food packaging and consumer products. There have been increased federal and state regulation across a variety of program areas, including drinking water, site remediation and operational permits issued under the Clean Water Act.

Among the more sweeping recent government regulatory developments has been the EPA’s March 2023 proposal of a first-ever national drinking water standard called the National Primary Drinking Water Regulations. The proposed standard is far below any of the standards adopted by the states, all of which will need to revise their laws to be as strict as federal law when finalized. …

June 23, 2023

Employment Eligibility Verification Requirement Flexibility to End August 30, 2023

Pittsburgh, PA

Employment and Labor Alert

(by Alex Farone and Steve Antonelli)

All employers must soon resume physically inspecting the Form I-9 and employment eligibility documentation for new employees, a requirement that has not been strictly enforced since the beginning of the COVID-19 pandemic.

The U.S. Immigration Customs Enforcement (ICE) of the Department of Homeland Security (DHS) had temporarily allowed remote I-9 verification during the pandemic for employees working remotely. After several extensions, these permitted flexibilities are scheduled to end on July 31, 2023. ICE has announced that employers will have a 30-day grace period until August 30, 2023, to reverify in person all employment eligibility documents for employees who were hired after March 20, 2020 with virtual or remote examination. This requirement particularly relates to Section 2 of the Form I-9, where the employer must certify by signature under penalty of perjury that they have examined evidence of the employee’s identity and documentation authorizing them to work in the U.S. within three business days of the employee’s first day of employment, thereby verifying employment eligibility. For all new hires moving forward, the in-person verification requirements will resume on July 31, 2023.

Employers may perform the in-person inspections themselves by requesting that these employees visit the office or by sending another employee to perform the inspection in person. Alternatively, employers are permitted to designate an authorized representative, including non-employees such as third-party notaries, to conduct the in-person inspection on behalf of the employer. In fact, DHS permits any person other than the employee in question to act as an employer’s authorized representative. Some employers utilize third-party services for this function, and others request contact information for a friend or family member of the employee to have them perform this role. …

June 15, 2023

Seeing the Forest for the Trees: Understanding How Original Jurisdiction in ACRE Cases Impacts Your Municipality

Pittsburgh, PA

Legal Intelligencer

(By Michael Korns and Anna Hosack)

Municipalities in Pennsylvania are “creatures of the state,” and thus, have only those powers that have been granted to them by the Commonwealth.  One of the foundational statutes of Pennsylvania municipal law is the Pennsylvania Municipalities Planning Code (“MPC”), 53 P.S. § 10101 et seq.  The MPC grants municipalities the right to regulate subdivision, land use, and zoning, and establishes the procedures and guidelines that govern local land regulation.  However, the MPC is just a statute, and what powers the state has granted, it can just as easily take away.  A recent opinion from the Commonwealth Court shows the dangers of relying solely on the MPC procedural rules when other statutes are also potentially in play and highlights the importance of understanding when the normal day to day protocols of the MPC may be superseded by other laws.

In R. Bruce McNew v. East Marlborough Township, No. 29-MD-2022, 2023 WL 3081354 (Pa. Cmwlth. Apr. 26, 2023), the Pennsylvania Commonwealth Court revisited the impact of the Agricultural Communities and Rural Environmental Act (“ACRE”), 3 Pa.C.S. § 101 et seq., and the Right to Farm Act, 3 P.S. §§ 951-958 (“RTFA”), on a municipality’s ability to regulate forestry and timber harvesting within its boundaries.

Fundamentally, Pennsylvania municipalities have no inherent power of their own; but rather, they possess only such powers of government as are expressly granted to them by statute and as are necessary to carry the same into effect.  Through enactment of the MPC, the General Assembly authorized the governing body of each municipality to enact, amend, and repeal zoning and subdivision and land development ordinances to allow for local regulation of land use.   …

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