March 27, 2024

New to Whom? The Fifth Circuit strikes down EPA’s attempt to regulate ongoing uses of PFAS under TSCA’s “significant new use” provision.

Pittsburgh, PA and Washington, DC

Environmental Alert

(By Joseph Schaeffer and Sloane Wildman)

On March 21, 2024, the U.S. Court of Appeals for the Fifth Circuit issued an opinion in Inhance Technologies, L.L.C. v. U.S. Environmental Protection Agency, No. 23-60620 (5th Cir. Mar. 21, 2024) that confirmed the obvious: a company that has a 40-year history of using perfluoroalkyl substances (PFAS) in its fluorination manufacturing process is not engaged in a “significant new use” under the Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601-2697. While not preventing the U.S. Environmental Protection Agency (EPA) from regulating existing uses of PFAS under other TSCA provisions, this common-sense conclusion provides industry with much-needed clarity and predictability.

TSCA Background

TSCA was enacted in 1976 to regulate chemicals that “present an unreasonable risk of injury to health or the environment.” 15 U.S.C. § 2601. EPA may do so in one of two ways. Under TSCA § 5, EPA may regulate the use of “new chemical substance[s]” and any “significant new use” of chemical substances. 15 U.S.C. § 2604. To determine whether use of a chemical substance is a significant new use, EPA considers four factors:

(1) the projected volume of manufacturing and processing of a chemical substance; (2) the extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance; (3) the extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance; and (4) the reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.

15 U.S.C. § 2604(a)(2).

March 27, 2024

Federal Court Dismisses Challenge to WV Pooling Statute

Charleston, WV

Energy Alert

(by Robert Stonestreet and Austin Rogers)

A federal court has dismissed a challenge to the validity of a West Virginia law authorizing pooling and unitization of oil and gas formations associated with Marcellus and Utica shale wells.  The court concluded that the mineral owners who filed the suit lacked standing to bring their claims because they failed to allege an actual injury from the challenged law.

As reported in an Alert published on February 1, 2024, the Fourth Circuit Court of Appeals directed the lower court, Judge John Preston Bailey of the District Court for the Northern District of West Virginia, to resolve a pending lawsuit challenging the law, known as Senate Bill 694, enacted by the West Virginia Legislature in 2022.  This includes a determination of whether the mineral owners established legal standing to challenge the law.  The District Court had previously abstained from addressing the merits of the claims or the legal standing of the mineral owners.

Judge Bailey ruled that the mineral owners lacked legal standing for at least two reasons. First, the Court observed that the mineral owners did not allege that their mineral interests had been adversely affected by the challenged law, that they were subject to unitization under the law, or that their royalties were diminished in any way by the law. Second, the Court found no causal connection between the mineral owners’ alleged injury and the enactment of the law.  The Court noted that the mineral owners did not explain how the agency they sued, the West Virginia Oil and Gas Conservation Commission, was affecting their mineral interest “in any way” or that future enforcement of the law against them was “imminent.”

If you have questions about this lawsuit or West Virginia law governing pooling and unitization, please contact either of the following attorneys to learn more: Robert Stonestreet at rstonestreet@babstcalland.com or 681.265.1364 or Austin Rogers at arogers@babstcalland.com or 681.265.1368.

March 27, 2024

Discovery Disputes: Best Practices from the Bench

Harrisburg, PA

Pretrial Practice & Discovery

American Bar Association Litigation Section

(by Michael Libuser)

For judges and their law clerks, one of the most frustrating aspects of pretrial practice is managing discovery disputes. Some advocates view them as hiccups—trivial quarrels that demand little of the court’s time—but discovery disputes often present the first meaningful opportunity for parties to interface with the court. (Case-management conferences, brief as they are, and narrowly focused on scheduling and housekeeping matters, rarely present the same opportunity.) And discovery disputes can, in fact, win and lose cases, color pretrial proceedings by sowing antagonism between the parties, and bring a case to a halt.This article cobbles together the views of numerous federal and state judges, as well as former and current law clerks, regarding best practices for addressing discovery disputes to the court. Some of these best practices are obvious, but litigants routinely fail to heed the obvious, according to the judges and law clerks who generously shared their views on this topic.

Know the RulesJudges are unanimous: Review local and judge-specific rules. Ignoring this obvious but often-neglected advice can chip away at a lawyer’s credibility, clutter the record, and create unnecessary work for all involved. Numerous judges, for example, require parties to informally notify chambers of discovery disputes before filing formal discovery motions. This requirement advances the goals of efficiency and helps keep costs down, and some judges will deny or strike a formal discovery motion filed in violation of it.

Vet Your Position

“My first piece of advice when a litigator arrives at an impasse with opposing counsel regarding a discovery issue is to carefully review the [procedural rules] on point and research caselaw to ensure that the position you are taking is sound.” One judge estimates that 70 percent of discovery disputes can be resolved under a straightforward application of black-letter rules and law.

March 25, 2024

You’re Going to Need a Bigger Boat: Intentional Interference Claims Now Hold Water in Context of At-Will Employment Relationships

Pittsburgh, PA

The Legal Intelligencer

(by Steve Antonelli)

When talking about the practice of law with other lawyers—whether long time practitioners, first year associates, or any stage in between—I have been known to advocate for my chosen practice area by pointing out that employment lawyers never get bored with the fact patterns we encounter.  I am of course willing to acknowledge that other commercial litigators surely come across an exciting case occasionally, but employment lawyers routinely deal with allegations that at the very least are interesting and sometimes include personality conflicts that are akin to a soap opera.  In late February, the Pennsylvania Supreme Court issued a decision in Salsberg v. Mann, — A.3d —- (2024), that could help to ensure that employment litigation will continue to have the “best” fact patterns for years to come, when it ruled that plaintiffs can maintain a cause of action for intentional interference with an at-will employment relationship against third-parties, including coworkers who act outside the scope of their authority to the point they are rendered a “stranger” to the plaintiff’s at-will employment relationship with their employer.

Drexel University employed Cara Salsberg as its Tax Manager; an at-will position within the University’s Tax Department.  Salsberg reported to Donna Mann, whose supervisory responsibilities included determining Salsberg’s schedule and assignments, evaluating Salsberg’s performance, and making recommendations to the University related to Salsberg’s employment.  During a staff meeting in anticipation of the 2017 tax season, Mann told Salsberg and another Tax Department employee that they would soon need to work a yet-to-be-determined amount of overtime during the upcoming “busy season.”  Salsberg expressed her disagreement to Mann, who in turn blamed her own supervisor, David Rusenko, for the increased workload.  Salsberg then decided to meet with Rusenko directly. 

March 15, 2024

D.C. Circuit Delivers EPA a Loss on Startup, Shutdown, and Malfunction Waivers under the Clean Air Act

Pittsburgh, PA and Washington, DC

Environmental Alert

(by Joseph Schaeffer and Gina Buchman)

On March 1, 2024, the D.C. Circuit issued its long-awaited decision in Environmental Committee of the Florida Electric Power Coordinating Group, Inc. v. EPA, No. 15-1239 (D.C. Cir. Mar. 1, 2024), in which it vacated the majority of an Environmental Protection Agency (EPA) final agency action commonly referred to as the 2015 SSM SIP Call.  The agency action required states to remove provisions in their state implementation plans (SIPs) that insulate sources from liability for excess emissions occurring during periods associated with startups, shutdowns, and malfunctions (SSM). To understand the impact of this decision, it is necessary to understand both what was at issue and what the Court did (and did not) decide.

Environmental Committee is the product of a long-simmering dispute over SSM provisions.

Under the Clean Air Act, 42 U.S.C. § 7401 et seq., states are required to adopt and submit for EPA’s approval SIPs that provide for the implementation, maintenance, and enforcement of national ambient air quality standards within their jurisdictions. 42 U.S.C. § 7410(a)(1). From the time that SIPs were first required as part of the 1970 amendments to the Clean Air Act, many states have included special provisions governing SSM events. These SSM provisions generally fall into one of four categories:

  1. Automatic exemption provisions excluding SSM periods from otherwise applicable emissions rules;
  2. Director’s discretion provisions allowing state officials to independently and conclusively determine that excess emissions during SSM periods are not violations of applicable emissions rules;
  3. Enforcement discretion provisions allowing state officials to bar enforcement action for excess emissions during SSM periods;
March 14, 2024

Developments in Data Privacy

Pittsburgh, PA

PIOGA Press

(by Ember Holmes and Justine Kasznica)

In 2023, Pennsylvania’s Breach of Personal Information Notification Act (BPINA), underwent its first major update since it was signed into law in June 2006. The Amended BPINA¹ went into effect on May 2, 2023. The Amended BPINA affects all Pennsylvania entities that store information belonging to Pennsylvania residents, including energy companies, but has the most significant impact on state agencies and entities that contract with state agencies.

BPINA was designed to set security parameters and standards for entities that maintain, store, or manage computerized data containing the Personal Information (as defined below) of Pennsylvania residents. BPINA sets forth specific requirements for notifying residents of security system breaches. The Amended BPINA creates new definitions for previously undefined terms in BPINA, amends existing term definitions, and bolsters notification and security requirements for state agencies, state agency contractors, counties, public schools, and municipalities.

As a state agency, the Pennsylvania Department of Environmental Protection (PADEP) will be subject to this higher level of scrutiny with regard to its handling of personal information. In addition, any entity that contracts with the PADEP or maintains data on behalf of the PADEP or any other state agency is also subject to these more stringent requirements and should be familiar with the updates as applicable to their notification, reporting, and encryption practices.

Expanded Definition of “Personal Information” and Related Notification Requirements

  • The original BPINA definition of “Personal Information” included: (i) social security numbers; (ii) driver’s license numbers or state identification card numbers issued in lieu of driver’s licenses; and (iii) financial account numbers and credit or debit card numbers, in combination with any required access codes or passwords that would permit access to an individual’s account.
March 5, 2024

PADEP Releases Final Guidance Regarding Trenchless Technology

Pittsburgh, PA and Washington, DC

The Foundation Water Law Newsletter

(Lisa M. BruderlyMackenzie M. Moyer and Jessica Deyoe)

On January 18, 2024, the Pennsylvania Department of Environmental Protection (PADEP) presented the final version of the technical guidance document on using trenchless technology to construct natural gas pipelines, other pipelines, and underground utilities to the PADEP Water Resources Advisory Committee. See PowerPoint Presentation, PADEP, “Trenchless Technology Guidance: Environmental Considerations for the Construction and Operation of Trenchless Technology” (Jan. 18, 2024). The final guidance was published in the Pennsylvania Bulletin in late February. See 54 Pa. Bull. 1017 (Feb. 24, 2024). Development on the guidance began in 2018 due to a stakeholder workgroup required as part of a PADEP settlement with the Clean Air Council, the Delaware Riverkeeper Network, and the Mountain Watershed Association regarding PADEP-issued permits for the Mariner East II Pipeline Project.

The final guidance, entitled “Trenchless Technology Guidance,” PADEP Doc. No. 310-2100-003, outlines the steps that proponents of projects using trenchless technology should consider. Trenchless technology is defined as “[a] type of subsurface construction work that requires few trenches or no trenches which includes any trenchless construction methodology, including, but not limited to: horizontal directional drilling, guided auger bore, cradle bore, conventional auger bore, jack bore, hammer bore, guided bores, and proprietary trenchless technology.” Id. at 6. Trenchless technology is often considered a less environmentally impactful alternative to other types of construction. Id.

Under the Guidance, each project should evaluate the “suitability, feasibility, and environmental considerations” of using trenchless technology methods, depending on the level of environmental risk. Id. 

March 5, 2024

Governor Shapiro Awards $101.1 Million in Grants for Abandoned Mine Land Reclamation Projects

Pittsburgh, PA and Washington, DC

The Foundation Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(Joseph K. ReinhartSean M. McGovern, Gina F. Buchman, Christina M. Puhnaty)

The Pennsylvania Department of Environmental Protection (PADEP) recently announced the availability of over $101.1 million in funding for 16 environmental restoration projects across 12 Pennsylvania counties as part of PADEP’s AML/AMD Grant Program. See Press Release, PADEP, “The Shapiro Administration Awards $101.1 Million in Grants for Environmental Restoration Projects” (Jan. 17, 2024). This funding comes from the Biden administration’s Bipartisan Infrastructure Law, through which Pennsylvania expects to receive $244.9 million annually until 2036. These projects focus on reclaiming abandoned mine lands and decreasing or treating abandoned mine drainage.

Pennsylvania’s AML/AMD Grant Program will have three application rounds in 2024 for new projects:

  • 2024 Application Round 1—February 19, 2024, through 11:59 p.m. April 5, 2024
  • 2024 Application Round 2—June 3, 2024, through 11:59 p.m. July 19, 2024
  • 2024 Application Round 3—September 23, 2024, through 11:59 p.m. November 8, 2024

Program guidance and application instructions are available on PADEP’s website, as well as annual summaries of the accomplishments of abandoned mine reclamation projects in Pennsylvania. See PADEP, “AML/AMD Grant Program,” here.

PADEP Issues Draft 2024 Pennsylvania Integrated Water Quality Report
In November 2023, the Pennsylvania Department of Environmental Protection (PADEP) issued its draft interactive 2024 Pennsylvania Integrated Water Quality Report and the public comment on the draft report has now closed. The report identifies Pennsylvania’s federal Clean Water Act (CWA) § 303(d) listing of impaired waters requiring total maximum daily loads (TMDLs), and section 305(b) reporting of the overall condition of Pennsylvania’s aquatic resources.

February 27, 2024

The New Energy & Transportation Technology Revolution: Can Pennsylvania Adapt?

Washington, DC

City & State Pennsylvania Magazine

(by Jim Chen)

Published in January of this year, the U.S. Energy Information Administration (“EIA”) Short-Term Energy Outlook (‘STEO’) forecast shows a rising trend in energy production across all sectors.  These trends include not only an increase in oil and gas production, but also a rise in alternative energy generation such as wind and solar, supported by battery storage technology that increases by 14 gigawatts this year and 9 gigawatts next year for a total installed capacity of 40 gigawatts by 2025.  Overall, these trends are a net positive for the United States as the country diversifies energy sources in the United States and the means by which electricity is generated.  Diversification of our energy supply matters – not simply from a supply side calculus, but for reasons of national security, technology leadership, economic prosperity and growth, and the environment.  An “all-of-the-above” strategy is simply smart policy for the United States.

From an economic perspective, reliance on a single source of energy leaves the country vulnerable to price shocks and shortages when inevitable issues arise.  Petroleum should be a particular focus as the United States is the largest consumer of oil in the world at over 20 million barrels per day.  Of that amount, 66.6% is consumed in the transportation sector, 43% for motor gasoline alone.  As a result, diversification can be beneficial and reduce risk in the transportation sector as part of the overall energy mix.

The national security and economic implications of an overreliance on a single source of energy are significant, regardless of the U.S. rate of domestic production.  For example, oil is a global commodity subject to volatile price fluctuations based on world events. 

February 15, 2024

A Methane Mixed Bag: EPA Finalizes Methane Rule for New and Existing Oil and Gas Facilities

Pittsburgh, PA

PIOGA Press

(By Gary Steinbauer and Christina Puhnaty)

On December 2, 2023, the U.S. Environmental Protection Agency (EPA) released a pre-publication version of its final Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review (Final Rule). The Final Rule comes more than two years after EPA published its initial proposal on November 15, 2021 (Initial Proposal) and a supplemental proposal on December 6, 2022 (Supplemental Proposal) (collectively, the “Proposals”). According to EPA, the agency received over one million comments on the Proposals. (For information on the Proposals, please see our November 11, 2021 and December 12, 2022 articles.) This Alert focuses on critical aspects of the Final Rule, including key changes that EPA made since issuing the Proposals.1 

Brief Overview of Methane Rule

The Methane Rule is comprised of four separate actions proposed under sections 111(b) and 111(d) of the Clean Air Act. EPA currently regulates emissions of volatile organic compounds (VOCs) and methane from oil and natural gas facilities under 40 C.F.R Part 60 Subparts OOOO2 and OOOOa3. First, through this Final Rule, EPA will regulate oil and natural gas facilities constructed, modified, or reconstructed after December 6, 2022, under a new Subpart OOOOb. The requirements in OOOOb will apply to affected facilities 60 days after the rule is published in the federal register. Second, under a new Subpart OOOOc, EPA finalized emissions guidelines that are intended to inform states in the development, submittal, and implementation of state plans to establish standards of performance for greenhouse gases (in the form of limitations on methane) from sources existing on or before December 6, 2022.

February 14, 2024

PFAS and RCRA: EPA’s Latest Proposed Rules Significantly Expand Corrective Action Authority

Washington, DC

Environmental Alert

(by Sloane Anders Wildman and Jessica Deyoe)

On February 8, 2024, the U.S. Environmental Protection Agency (EPA) published two proposed rules to address per- and polyfluoroalkyl substances (PFAS) and other emerging contaminants under the authority of the Resource Conservation and Recovery Act (RCRA). Specifically, EPA is proposing to add nine PFAS (including their salts and structural isomers) to the list of “hazardous constituents” in Appendix VIII of 40 C.F.R. Part 261. EPA is also proposing to clarify, by regulation, that emerging contaminants – including PFAS – can be addressed under RCRA’s Corrective Action Program. Comments on the first proposed rule, Listing of Specific PFAS as Hazardous Constituents, are due April 8, 2024, and comments on the second proposed rule, Definition of Hazardous Waste Applicable to Corrective Action for Releases from Solid Waste Management Units, are due March 11, 2024.

EPA first announced its intent to regulate PFAS under RCRA in its 2021 PFAS Strategic Roadmap. This came as a direct response to a petition by New Mexico’s Governor Michelle Lujan Grisham requesting the EPA list PFAS as RCRA Subtitle C hazardous waste, either as a class of chemicals or as individual chemicals. Then, in November 2021, the EPA announced it would initiate rulemaking for two RCRA actions, which have now been published in the Federal Register as proposed rules more than two years later.

RCRA and the Regulation and Cleanup of Hazardous Waste

RCRA gives EPA the authority to control and regulate hazardous waste from “cradle-to-grave” under its Subtitle C regulatory framework. 42 U.S.C. §§ 6921-6934;

February 13, 2024

Pennsylvania Senator Yaw Introduces Bill to Repeal RGGI

Pittsburgh, PA and Washington, DC

Environmental Alert

(By Kevin Garber and Jessica Deyoe)

On February 2, 2024, Pennsylvania Senator Gene Yaw introduced SB 1058 to repeal the Regional Greenhouse Gas Initiative CO2 Budget Trading Program regulation that the Environmental Quality Board promulgated in 2022. Senator Yaw stated that “RGGI is wrong for Pennsylvania” and believes that Pennsylvania would be better suited by an “environmentally responsible energy policy that recognizes and champions Pennsylvania as an energy producer.” He further stated that RGGI would leave thousands of Pennsylvanians struggling to pay their utility bills and would have a detrimental impact on the reliability of the region’s electric grid.

In part, this bill comes as a response to Governor Shapiro’s appeal of a November 2023 ruling by the Pennsylvania Commonwealth Court, which held that the RGGI regulation was an unconstitutional tax and declared the rule to be void. See Bowfin KeyCon Holdings, LLC et al v. Pennsylvania Department of Environmental Protection and Pennsylvania Environmental Quality Board (No. 247 M.D. 2022). It also comes not long after members of the Pennsylvania General Assembly met with members of the Ohio General Assembly to discuss the reliability of the mid-Atlantic power grid PJM manages. PJM is the regional transmission organization that coordinates the movement of wholesale electricity in all or parts of 13 states and the District of Columbia. PJM projects 20 percent of its existing capacity will retire before 2030.

Earlier, on December 12, 2023, Senator Yaw introduced SB 832 to create an Independent Energy Office in Pennsylvania.  The Office would be a nonpartisan independent agency committed to providing at least one statewide energy report to each legislative session that reviews the use of fossil fuels, renewable energy, and nuclear power to meet the Commonwealth’s energy needs and working with the General Assembly to establish a statewide energy plan.

February 12, 2024

When Standing Won’t Stand – Pennsylvania Supreme Court Rules that a Grant of Party Status by a Zoning Hearing Board Does Not Automatically Convey Appellate Rights

Pittsburgh, PA

The Legal Intelligencer

(by Michael Korns and Anna Hosack)

Last spring, the Pennsylvania Supreme Court addressed the question of who is entitled to standing in matters before a municipal zoning hearing board, and more importantly, who has standing to file an appeal from a board decision.  In South Bethlehem Assocs., LP v. Zoning Hearing Bd. of Bethlehem Twp., 294 A.3d 441 (Pa. 2023), the Pennsylvania Supreme Court held in a three-two decision that while the Municipalities Planning Code, 53 P.S. § 10101 et seq., (the “MPC”), allows the Board wide latitude to grant party status, a grant of standing by the Board does not automatically convey appellate rights absent a finding that the party is entitled to judicial review under the Local Agency Law, 2 Pa.C.S. § 105 et seq., only if they qualify under the “aggrieved party” standard, which requires that they had suffered a harm to an interest that the law is intended to protect.  However, this was a narrow decision, and the dissenters would allow any grant of party status by the Board to also grant appellate standing.  The result would be a dramatic relaxation of appellate standing requirements in zoning hearing board cases.

In South Bethlehem Assocs., the Applicant, a hotel owner, applied to the Zoning Hearing Board of Bethlehem Township (“ZHB”) and requested a dimensional variance.  At the public hearing before the ZHB, counsel for a business competitor of the Applicant appeared and claimed party status by signing in on the provided form as an objector.  The Applicant objected to the Objector’s participation because the Objector’s hotel was outside of the four-hundred-foot radius required for formal notice of the hearing. 

February 6, 2024

Legislative & Regulatory Update

Charleston, WV

The Wildcatter

(By Nikolas Tysiak)

Happy New Year! After a hiatus, we are back with new laws and cases for your information.

In Nicholson v. Severin POA Group, LLC, 895 S.E.2d 927 (W. Va. I.C.A. 2023), the West Virginia intermediate court of appeals was asked to interpret the meaning of an oil and gas reservation in a Doddridge County deed. The original deed involved a conveyance from F. W. Severin to L. D. Nicholson for 117.55 acres, excepting and reserving “one-sixteenth of all the oil and gas in and under said land.” In 2022, this language gave rise to a dispute as to whether Severin retained a 1/16 interest in oil and gas, or a ½ interest in oil and gas. After reviewing several older cases involving different iterations of oil and gas reservations, most of which involved either fractional splits between oil and gas rights (i.e., 1/16 oil and ½ gas) or referenced royalty as to the oil, gas, or both, the intermediate court determined the language of Severin’s reservation did not include the same factors creating ambiguity, that the Severin reservation was therefore not ambiguous, and concluded that Severin, and his successors in title, only retained an undivided 1/16 interest in oil and gas, based on the unambiguous language of the original deed.

In DD Oil Company v. State ex rel Ward, — S.E.2d —, 2023 WL 8588491 (W. Va. I.C.A.), DD Oil Company had permits to drill several wells in Ritchie County. The West Virginia Department of Environmental Protection (WVDEP) issued violations against DD Oil, which required DD Oil to cease all drilling operations and caused a protracted administrative and judicial review process. More than a year after the initial notice of violation, and after expiration of all the permits issued to DD Oil, WVDEP withdrew its notice of violation.

February 1, 2024

Court to rule on WV pooling statute challenge

Charleston, WV

GO-WV

(by Robert Stonestreet and Austin Rogers)

A federal appeals court has instructed a lower court to resolve a pending suit challenging the constitutionality of West Virginia’s oil and gas pooling and unitization law.  The federal district court previously declined to resolve certain constitutional issues presented in the suit on the grounds that those issues should be decided by a state court instead of a federal court.

In 2022, the West Virginia Legislature enacted Senate Bill 694 to revise West Virginia law governing the pooling and unitization of oil and gas formations associated with horizontal well development.  Pooling and unitization essentially involves combining separately owned properties into a single “unit” through which one or more horizontal wells are drilled.  The oil and gas produced from the horizontal well is then allocated among all the properties in the unit for purposes of calculating production royalties payable to the mineral owners.

Prior to Senate Bill 694 becoming effective on June 7, 2022, formation of a pooled unit for a horizontal well drilled through “shallow” oil and gas formations, which includes the Marcellus Shale, required consent of 100% of the mineral owners for all the properties to be included in the unit.  This 100% consent requirement did not apply to horizontal wells drilled through “deep formations” such as the Utica Shale.  One of the more significant changes made by SB 694 was to allow the West Virginia Oil and Gas Conservation Commission to approve units for shallow formations where at least 75% of the mineral owners consent, provided other requirements are also satisfied.  This means that up to 25% of a unit could potentially include properties for which the mineral owner did not consent to being part of a unit.

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