Articles, Alerts & Perspectives

Construction Alert

(by Marc Felezzola, David White and James Miller)

Governor Tom Wolf announced on April 23, 2020 that the construction industry in Pennsylvania may resume in-person operations starting Friday, May 1, 2020 – one week earlier than previously announced.  Governor Wolf also issued “stringent” guidance intended to protect construction workers and the public when construction operations resume.  This guidance “provides universal protocols for all construction activity, as well as specific additionally guidance for residential, commercial and public construction projects.”

Among the requirements:

• All persons present at a work site must wear masks/face coverings unless they are unable for medical or safety reasons and businesses must establish protocols upon discovery that the business has been exposed to a person who is a probable or confirmed case of COVID-19.
• All construction projects must maintain proper social distancing and provide hand washing and sanitizing stations and protocols for high risk transmission areas.
• Businesses must identify a “pandemic safety officer” for each project or work site or, for large scale construction projects, for each contractor at the site.
• Residential construction projects may not permit more than four individuals on the job site at any time, not including individuals who require temporary access to the site and are not directly engaged in the construction activity.
• For non-residential or commercial projects, no more than four people are permitted for spaces of 2,000 square feet or less, with one additional person allowed for each additional 500 square feet of enclosed area over 2,000.
  • Note that enclosed square footage includes “all areas under roof that are under active construction at the time.”
• Commercial construction firms should also “consider strongly” establishing a written safety plan for each work location containing site specific details to be shared with all employees and implemented and enforced by the pandemic safety officer.

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Pipeline Safety Alert

(by Keith Coyle and Ashleigh Krick)

On April 20, 2020, the Pipeline and Hazardous Materials Safety Administration (PHMSA or the Agency) published a Request for Comments on proposed Frequently Asked Questions (FAQs) for the regulation of farm taps under 49 C.F.R. Parts 191 and 192.  The proposed FAQs come nearly two years after the Agency posted, and then withdrew, an earlier set of farm tap FAQs on its website.  Consistent with the Department of Transportation’s policy on guidance documents, PHMSA is seeking public comment before finalizing the latest version of the farm tap FAQs.  The deadline for submitting comments is June 19, 2020.  Additional information about the regulation of farm taps and the proposed FAQs is provided below.

Why did PHMSA issue the Proposed FAQs?

The regulatory status of farm taps has generated significant controversy in the past decade.  In 2010, PHMSA issued FAQs for the new Distribution Integrity Management Program (DIMP) regulations stating that the DIMP requirements applied to farm taps, even though that issue had not been specifically discussed or addressed during the rulemaking process.  The Agency defended that position in the years that followed, but eventually allowed operators to choose to include farm taps in a DIMP plan or follow the three-year periodic inspection requirement for regulators and overpressure protection equipment.

In January 2018, PHMSA published a set of new FAQs for farm taps on its website.  The FAQs addressed a range of topics, including the new three-year periodic inspection requirements, annual reporting requirements, OPID requirements, regulatory status of existing farm taps and those installed prior to 1960, operator qualification, definitional clarifications, and excess flow valve installation.  …

Environmental Alert

(by Lisa Bruderly)

Yesterday, the U. S. Environmental Protection Agency (EPA) and the U. S. Army Corps of Engineers (Corps) fulfilled the Trump administration’s promise to repeal and replace the Obama administration’s Clean Water Rule (CWR) by publishing the final Navigable Waters Protection Rule (NWPR) in the Federal Register (85 Fed. Reg. 22250). The NWPR (yet again) redefines the scope of waters that are regulated under the Clean Water Act (CWA) by revising the definition of “waters of the United States” (WOTUS) in 12 federal regulations (see January 31, 2020 Alert for details and discussion of anticipated effect of the NWPR).

As expected, the NWPR’s WOTUS definition is much narrower and will federally regulate fewer waters than the CWR. The Rule also clarifies the scope of WOTUS in greater detail than the pre-2015 definition, which is currently in effect. The Rule consolidates jurisdictional waters into four categories: (1) territorial seas and navigable-in-fact waters; (2) tributaries; (3) lakes, ponds and impoundments of jurisdictional waters; and (4) adjacent wetlands. It includes 16 definitions and 12 exclusions, as compared to the five definitions and two exclusions in the pre-2015 definition, including, for the first time, definitions to clarify the prior converted cropland and waste treatment system exclusions. The Rule categorically excludes, among other things, ephemeral streams and ditches without perennial or intermittent flow.  In addition, missing from the NWPR is any reference to the significant nexus test.

Practical Impact of the NWPR will be State-Specific

The practical impact of the Rule for industry, developers, agriculture and others will vary from state to state. The NWPR’s effect is likely less in states with very inclusive definitions of state-regulated waters (e.g., Pennsylvania) than in states with narrower definitions of the same. …

Client Alert

(by Moore Capito, Christian Farmakis and Andrew Terranova)

On April 3, 2020, lenders began accepting and issuing Paycheck Protection Program loans (PPP Loans) to qualifying small businesses. In less than two weeks, the approximately $350 billion appropriated to the PPP Loans were fully depleted. Over the past two weeks, we have received questions related to the application process, appropriate use of loan proceeds during the covered period, calculating the level of loan forgiveness, and the possibility of further funding.

We understand that no two businesses are the same and that’s why we are uniquely tailoring our approach to acquisition and utilization of the PPP Loans to suit your needs. If your business received a PPP Loan, we are prepared to provide counsel to your business on how loan proceeds may be allocated.

Yesterday, the U.S. Senate passed a major enhancement to the PPP Loan program. While action by the U.S. House of Representatives is not expected until Thursday, we fully expect $310 billion additional dollars to be added to the PPP Loan program. Therefore, it is important for qualifying businesses that missed out on the first round of funding to be prepared to act quickly. The first step is ensuring your application is properly completed and submitted to an SBA-approved lender. The application can be found here and SBA-approved lenders can be found here. We have counseled dozens of clients on the application process and we are happy to assist your business as well.

If you have questions about the application and/or utilization of PPP Loans, please contact us and we will help guide you through the process. …

Client Alert

(by Blaine Lucas, Stephen Korbel and Max Junker)

Modifies Public Meeting Rules, Suspends Land Use Application Processing Deadlines on a Limited Basis, Authorizes Taxing Bodies to Postpone the Property Tax Discount Date and Waive Late Fees and Penalties, and Authorizes the Remote Use of Notaries.

On April 20, in response to the COVID-19 pandemic, Pennsylvania Governor Tom Wolf signed Act 15 of 2020. Act 15 was unanimously approved by the Commonwealth’s Senate and House of Representatives, and takes effect immediately. As part of broader legislation regarding healthcare cost containment, Act 15 addresses a number of critical issues for Pennsylvania local governments, most notably how to conduct business in compliance with applicable statutory requirements when the physical presence of their officials, constituents, development applicants and other interested parties is either highly discouraged by public health officials or prohibited altogether. This can be particularly problematic for applicants for a variety of local government land use approvals, consideration and action on which usually are statutorily mandated to take place at public meetings and hearings.

Among other things, Act 15:

• Eliminates the requirements for physical attendance at public meetings during the Governor’s declaration of a disaster emergency by permitting the use of “authorized telecommunications devices.”
• Provides for the limited suspension, or “tolling,” of statutory deadlines for municipal boards and agencies to hear and act upon a wide variety of land use and other development applications.
• Authorizes taxing districts to extend the deadline for payment of property taxes at a discount and to waive fees and penalties for late payments.
• Authorizes the remote use of notaries via communications technologies.

Use of Telecommunications Devices to Conduct Public Meetings

Until the expiration or termination of the COVID-19 disaster emergency, an agency, department, authority, board, council, governing body or other political subdivision included in the declaration may conduct hearings, meetings, proceedings or other business through the use of an “authorized telecommunications device”, defined as “any device, which permits, at a minimum, audio communication between individuals.” Act 15 also dispenses with provisions in certain municipal codes, such as the Borough Code, requiring the physical presence at a meeting location of a quorum of the participating members, as long as a quorum is otherwise established through the authorized telecommunications device. …

Transportation Safety Alert

(by Boyd Stephenson, Varun Shekhar, Jame Curry)

Babst Calland has updated this alert to capture new shipping paper guidance extended by the Pipeline and Hazardous Materials Safety Administration.

In response to the COVID-19 pandemic, U.S. Department of Transportation (DOT) agencies that regulate the surface transportation of hazardous materials (HazMat) have extended several forms of relief.  The Pipeline and Hazardous Materials Safety Administration (PHMSA) has waived some HazMat training requirements, delayed some equipment recertifications, provided guidance for complying with existing shipping paper rules while practicing safe social distancing, and adopted a temporary enforcement policy for transporting alcohol-based sanitizer.  The Federal Motor Carrier Safety Administration (FMCSA) and the Federal Railroad Administration (FRA) are implementing PHMSA’s waiver in their modes.  FMCSA has also allowed States to extend the effective dates for commercial driver’s licenses (CDL) and commercial learner’s permits (CLP).  Additionally, FRA has activated its emergency docket.  FRA has not extended any hazardous materials-specific relief.

Hazardous Materials Shippers, Carriers, and Package Manufacturers

• Update: On April 10th, PHMSA issued a notice highlighting existing regulations that allow shipping papers to be transferred between parties while minimizing the risk of spreading COVID-19.  PHMSA reminds regulated parties that no physical contact is required to exchange shipping papers.  PHMSA suggests that shipping papers may transferred either electronically or by placing the physical copy on a table, stepping away while the shipping paper is signed, and then retrieving the signed shipping paper.  The notice also reminds shippers that they may ask another person to sign on their behalf verbally, in writing, or through electronic authorization such as an email or text message.  By following these requirements, individuals transporting HazMat should be able to comply with the regulations without special relief.

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Environmental Alert

(by Lisa Bruderly, Julie Domike and Gary Steinbauer)

U.S. Environmental Protection Agency’s March 26, 2020 temporary COVID-19 enforcement discretion policy establishes the steps regulated parties must take to qualify for enforcement protection for noncompliance caused by COVID-19 (“COVID-19 Policy” or “Policy”).  Our previous Alert outlined the Policy’s scope, eligibility criteria, and expectations.  In less than a month, EPA’s Policy has generated significant controversy, conflicting media reports, congressional inquiries, and now a federal lawsuit.  Critiques of the Policy and EPA’s evolving messaging make clear that entities affected by COVID-19 should be thoughtful and strategic in their reliance on the potential relief provided by the Policy.

EPA’s Response to Backlash

In response to initial criticisms, EPA initiated several steps to explain its stance on environmental compliance and enforcement during the pandemic.  On March 30, 2020, EPA issued a news release to correct “the record on reckless reporting” by certain media outlets and clarify that the Policy applies on a case-by-case basis.  To quell legislative opposition, EPA sent members of Congress a letter on April 2, 2020, defending the Policy.  EPA has also created a Frequently Asked Questions webpage answering several questions on the scope and application of the COVID-19 Policy.

Environmental Groups Sue EPA and State Attorneys General Weigh-In

At the same time, environmental groups and the states have voiced concerns related to the Policy.  On April 1, 2020, a coalition of environmental groups, led by the Natural Resources Defense Council, petitioned EPA to promulgate an emergency rule requiring regulated parties to affirmatively report COVID-19-caused noncompliance and provide information similar to what EPA requires parties to document under the Policy.  …

Emerging Technologies Profile 

Why do you have two jobs? I’ve got the best of both worlds – in business and in public service. I love being an attorney because it challenges me every day to help clients achieve their business goals. My other job is being a member of the West Virginia House of Delegates. After having worked in Washington, D.C. serving on the White House advance team and as a staff member in the Department of Defense, I attended law school to prepare me for both worlds.

What do you do at Babst Calland? I represent publicly traded and privately held clients in mergers, acquisitions and divestitures, as well as business structuring, governance, commercial contracts, and real estate transactions.

When you are not at Babst Calland, you can be found… at the State Capitol in Charleston, West Virginia performing my legislative duties. I am passionate about West Virginia and the growing opportunities to reinvent ourselves in a way that focuses on innovation, entrepreneurship, and technological growth for the future. Helping West Virginia to expand in the technology space is one of my roles as co-chair of the Tech Caucus in West Virginia’s House.

Personally, what fulfills you most? My family and colleagues at work. I’m so blessed to have an opportunity to live, work, and raise a family in a place I love.

Tell us something about yourself that people may not know. The A.A. in my given name is from my late grandfather – Arch Alfred Moore, Jr., former Governor of West Virginia. My Mom – Shelley Moore Capito – is a U.S. Senator from West Virginia. I also play solitaire, with real cards, in my free time. …

The Legal Intelligencer

(by Krista-Ann Staley)

The Pennsylvania Commonwealth Court, the statewide intermediate appellate court that hears and decides land use appeals, took a temporary hiatus from issuing opinions while the Unified Judicial System of Pennsylvania adapted to the COVID-19 pandemic. During the hiatus, the Commonwealth Court: closed to the public for all nonessential functions through April 30, in accordance with a series of orders from the Pennsylvania Supreme Court; cancelled its March argument session in Harrisburg, indicating that it would decide all cases listed for argument on briefs unless a party requested an oral argument; extended certain filing deadlines under the Pennsylvania Rules of Appellate Procedure and deadlines for briefs, petitions, motions and applications for pending matters for 30 days; cancelled its April argument session in Harrisburg; relocated its May argument session from Pittsburgh to Harrisburg; and announced the May argument list. The Commonwealth Court then resumed posting opinions April 7, and is expected to work through a backlog of cases while its operations remain limited.

Prior to its hiatus, the Commonwealth Court released several land use decisions, two of which addressed statutory interpretation issues through subjects that rarely come before the court: zoning officer preliminary opinions and transferrable development rights.

In Friends of Lackawanna v. Dunmore Borough Zoning Hearing Board, No. 1586 C.D. 2018 (Pa. Commw. Ct. Feb. 18, 2020), the court addressed the “preliminary opinion” procedure set forth in the Pennsylvania Municipalities Planning Code, 53 P.S. §§10101, et seq. (the MPC). That process, added as Section 10916.2 of the MPC by the act of Dec. 21, 1988, P.L. 1329, serves to advance the timeline for a substantive validity challenge and allow a landowner to “secure assurance that the ordinance …  is free from challenge” before filing a land use application. …

Environmental Alert

(by Lindsay Howard and Matthew Wood)

The COVID-19 pandemic continues to disrupt nearly all aspects of American life and business, including ongoing response activities being conducted under the authority of the U.S. Environmental Protection Agency (EPA).  In connection with these impacts, on April 10, 2020, EPA published a memorandum entitled, Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19 (“EPA’s COVID-19 Field Work Guidance” or “Guidance”).  The Guidance offers guidelines, specific factors, and examples EPA Regions should consider in their decision-making processes to continue, reduce, or suspend on-site work.  Driving these case-by-case decisions are EPA’s two main priorities: (1) protecting the health and safety of the public, as well as EPA’s staff and cleanup partners; and (2) maintaining EPA’s ability to prevent and respond to environmental emergencies.  This Alert addresses questions regarding EPA’s guidelines and decision-making under the Guidance.

To What Sites Does EPA’s COVID-19 Field Work Guidance Apply?

EPA’s COVID-19 Field Work Guidance applies to ongoing and emergency response actions conducted at sites across the United States under multiple federal programs, including Superfund, RCRA, and TSCA, where EPA is the lead agency or has direct oversight of or responsibility for the work being performed.  EPA acknowledges that any number of parties may actually be performing the work covered by its Guidance, including EPA, states, tribes, other federal agencies, or potentially responsible parties (PRPs).  Although the Guidance does not apply directly to states, EPA specifies that Regions should share the Guidance with states and assist states conducting state-lead RCRA cleanups.

In What Types of Situations Will EPA Regions Reduce or Suspend Response Actions?

The Guidance identifies multiple situations that have informed (or may inform) Regions’ decisions to reduce or suspend response actions.  …

Transportation Safety Alert

(by Boyd Stephenson, Varun Shekhar, Jame Curry)

Babst Calland has updated this alert to capture new HazMat background check relief extended by the Transportation Security Administration (TSA).

In response to the COVID-19 pandemic, U.S. Department of Transportation (DOT) agencies that regulate the surface transportation of hazardous materials (HazMat) have extended several forms of relief.  The Pipeline and Hazardous Materials Safety Administration (PHMSA) has waived some HazMat training requirements and delayed some equipment recertifications.  The Federal Motor Carrier Safety Administration (FMCSA) and the Federal Railroad Administration (FRA) are implementing PHMSA’s waiver in their modes. FMCSA has also allowed states to extend the effective dates for commercial driver’s licenses (CDL) and commercial learner’s permits (CLP).  Additionally, FRA has activated its emergency docket.  FRA has not extended any hazardous materials-specific relief.  Finally, the Transportation Security Administration (TSA) is allowing states to extend HazMat endorsements (HME).

Hazardous Materials Shippers, Carriers, and Package Manufacturers

• On March 25th, PHMSA issued an updated policy declining to enforce recurrent training requirements under 49 C.F.R. § 172.704(c)(2) against HazMat employers unable to train employees due to COVID-19.  Employers are still required to provide initial training to a new hazardous materials employee before the employee may perform regulated functions.
• On April 1st, PHMSA issued two surface transportation-related emergency special permits authorizing the filling and transportation of certain DOT specification cylinders up to 12 months after they are due for a periodic requalification during the COVID-19 emergency. PHMSA also authorized the transportation of certain cylinders overdue for retesting due to COVID-19 disruptions.

Truck Transportation

• On March 18th, FMCSA issued an expanded emergency declaration waiving certain provisions of Parts 390 through 399—most notably the hours of service requirements—for drivers providing direct assistance in support of relief efforts. 

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