January 8, 2020

Babst Calland Expands Environmental Practice

Attorney Richard S. Wiedman Joins Firm

PITTSBURGH, PA – Babst Calland announced today the addition of veteran environmental attorney, Richard S. Wiedman, who joined as a shareholder at the Firm’s Pittsburgh headquarters.

Mr. Wiedman is joining Babst Calland’s team of highly-focused environmental attorneys in providing senior-level legal and regulatory counsel, particularly in the areas of environmental, permitting, environmental business counseling, and environmental litigation.

“We are very pleased to welcome Rick to our Firm and to our established team in Pittsburgh. I have known Rick for over 30 years and he is a natural fit for us as he shares our values, experience, and philosophy in serving clients, some with whom we already have existing relationships,” said Donald C. Bluedorn II, Managing Shareholder of Babst Calland. “Rick is a great addition as we continue to expand Babst Calland’s team and capabilities to serve the needs of existing and new clients across the country.”

Since 1980, Mr. Wiedman has represented clients before federal and state environmental agencies, and counseled clients on regulatory compliance issues and environmental considerations in a variety of business transactions. He also devotes significant time to the negotiation and prosecution of environmental permit and regulatory challenges, the defense of federal and state enforcement actions, and the representation of clients in remedial action/corrective action and cost recovery matters under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), the Resource Conservation and Recovery Act (RCRA), and their state counterparts.

His experience reflects the interrelationship of the major regulatory programs as they pertain to industrial activities. Many of the projects with which he is involved require the coordination of multidisciplinary efforts where creative engineering and technical approaches are often critical to the development and success of legal and regulatory strategy. …

January 6, 2020

West Virginia DEP Opens Comment Period on New Wetland Assessment Tool

Environmental Alert

(by Christopher B. “Kip” Power)

The West Virginia Department of Environmental Protection (WVDEP) recently released a new tool consisting of a standardized method for the functional assessment of wetlands, known as the West Virginia Wetland Rapid Assessment Method (WVWRAM). According to the WVDEP’s public notice accompanying its release, the WVWRAM represents the agency’s first effort to devise a state-specific protocol that will rate not just the quantity and type of wetlands, but also their chemical, physical, and biological integrity in arriving at a regulatory score. For permitting and mitigation scenarios (including off-site mitigation and creation of mitigation banks), that WVWRAM score will then be used as an input into the existing functional assessment tool known as the “West Virginia Stream and Wetland Valuation Metric” or “SWVM.”

The WVWRAM was developed as a part of the WVDEP’s federally-funded Wetland Program Plan and has been in the works for at least five years, with field testing in 2017 and 2018 that involved some 22 stakeholder organizations. In addition to the WVWRAM computer model, the WVDEP released an 11-page Field Form (data sheet), a User Manual, and a Reference Manual that were prepared by WVDEP scientists. The WVDEP plans to work with the U.S. Army Corps of Engineers and the Inter-Agency Review Team (IRT) to incorporate the WVWRAM into Clean Water Act Section 404 permitting for sites in West Virginia, and in the preparation of corresponding mitigation plans that are required to compensate for unavoidable loss or damage to wetland resources caused by permitted activities. According to the WVDEP press release, five two-day WVWRAM training workshops were held in 2019, with 122 participants from 40 organizations completing the necessary training to use the new protocol.

Generally, the agency does not expect there will be any change to the average amount of mitigation required for Section 404 projects in West Virginia, but mitigation required for individual projects will change, as the loss of low-functioning wetlands will require less mitigation than before and destruction of higher-functioning wetlands will require more mitigation. …

January 2, 2020

Update On Proposed Water Quality Standard for Manganese

RMMLF Mineral Law Newsletter

(By Joseph K. Reinhart, Sean M. McGovern, Hannah L. Baldwin)

EQB Approves Changes to Water Quality Criterion Limit

At its December 17, 2019 board meeting, the Pennsylvania Department of Environmental Protection’s (PADEP) Environmental Quality Board (EQB), a 20-member independent board that reviews and adopts all PADEP regulations before publication for public comment, approved PADEP’s proposed rulemaking to set a new ambient water quality criterion limit for manganese. See Proposed Rulemaking Preamble, PADEP, “Water Quality Standard for Manganese and Implementation” (Dec. 17, 2019); see also Vol. XXXVI, No. 3 (2019) of this Newsletter.

The amendments to water quality standards and standards implementation for manganese were developed pursuant to an October 30, 2017, amendment to section 1920-A of the Administrative Code of 1929, 71 Pa. Stat. § 510-20, known as Act 40 of 2017, directing the EQB to promulgate a manganese water quality criterion within 90 days. See Water Quality Standard for Manganese, 48 Pa. Bull. 605 (Jan. 27, 2018) (advance notice of proposed rulemaking). The Pennsylvania General Assembly passed the Administrative Code change as part of a budget package, with the requirement related to manganese regulation added as an amendment in the Senate.

The amendments approved by the EQB in December 2019 propose to delete manganese from Table 3 at 25 Pa. Code § 93.7 (relating to specific water quality criteria) and add manganese to Table 5 at 25 Pa. Code § 93.8c (relating to human health and aquatic life criteria for toxic substances), changing the numeric water quality criterion standard for manganese from 1 mg/L to 0.3 mg/L. …

December 20, 2019

Pittsburgh Paid Sick Leave Law Coming March 2020

Employment and Labor Alert

(by Stephen Antonelli and Alexandra Farone)

The City of Pittsburgh recently announced that the Paid Sick Days Act is slated to take effect on March 15, 2020. This Act requires employers to provide their employees with paid sick leave based on hours worked. The Act will apply differently to employers of different sizes:

  • For employers with 15 or more employees, eligible workers must be provided one hour of paid leave for every 35 hours worked, up to a maximum of 40 hours of paid leave per year.
  • For employers with less than 15 employees, eligible workers must be provided one hour of unpaid leave for every 35 hours worked, up to a maximum of 24 hours of paid during the first year of enforcement. After one year from the effective date of the Act, these small employers must provide one hour of paid leave for every 35 hours worked, up to a maximum of 24 hours of paid leave per year.
  • Employers based outside of Pittsburgh must begin offering leave under the Act for any of its employees that spend at least 35 hours working inside city limits.

Eligible employees include full- and part-time employees who work within the geographical limits of the City of Pittsburgh. The following types of workers are not eligible for leave under the Act: federal and state employees, independent contractors, construction workers in a collective bargaining unit, and seasonal employees as defined by the Act. Accrued leave may be carried over to the following calendar year unless the employer opts to “frontload” the maximum amount of leave at the beginning of each year. Sick time under the Act may only be used for the employee’s illness, injury, or health care; …

December 20, 2019

FMCSA Seeks Comments About Advanced Safety Technologies

Emerging Technologies Alert

(by Boyd Stephenson and Justine Kasznica)

On December 18, 2019, the Federal Motor Carrier Safety Administration (FMCSA or Agency)  published an information collection notice which proposes a limited scope for implementing the Beyond Compliance motor carrier safety program.[1]  According to the notice, FMCSA personnel intend to query a little over 100 motor carriers with strong safety records about what technologies they employ and what programs or practices they engage in to achieve strong safety results.  According to the notice, this research will be packaged into a technical report, which the Agency researchers will then incorporate into a Beyond Compliance report the Agency is required to transmit to Congress.  If only motor carriers are consulted, technology providers may lose the opportunity to identify safety innovations that are not yet widely known to the trucking industry.  The docket for comments will remain open through February 18, 2020.

Background

In the Fixing America’s Surface Transportation Act of 2015, (FAST Act) Congress directed the FMCSA to establish the Beyond Compliance program.[2]  Congress designed Beyond Compliance to identify advanced trucking safety technologies and practices that are not required by regulation but which improve safety.  After identifying these technologies, motor carriers would participate in the Beyond Compliance program by adopting these advanced safety technologies.  FMCSA would then reward the carriers by publicly recognizing the motor carrier.  Congress has also directed the Agency to deprioritize trucks operating for carriers that meet Beyond Compliance criteria for roadside inspection by either creating a new measurement category in FMCSA’s online CSA Safety Management System (SMS) or by designating that Beyond Compliant carriers’ CSA SMS scores are otherwise improved by participating in the program.

Congress also required FMCSA to adopt a process in which any interested party could submit a technology or process for inclusion in the program.  …

December 19, 2019

As the Law and Zoning Trends Evolve, So Must Your Zoning Ordinance

The Legal Intelligencer

(by Blaine A. Lucas and Alyssa E. Golfieri)

Now is the optimal time for municipalities to take a fresh look at their zoning ordinances to ensure they not only comply with state law, but that they are positioned to handle the influx of new and currently trending land uses.

As 2019 comes to a close and a new wave of elected local officials get ready to take their seats, now is the optimal time for municipalities to take a fresh look at their zoning ordinances to ensure they not only comply with state law, but that they are positioned to handle the influx of new and currently trending land uses.

Municipalities derive most of their authority to regulate the use of land from the Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101 et seq., (the MPC). The MPC was first enacted in 1968 and expressly authorizes municipalities to enact zoning ordinances to permit, prohibit, regulate and determine uses of land; the size, height, bulk, location, erection, construction repair, maintenance, alteration, razing, removal and use of structures; the area and dimensions of land to be occupied by uses and structures; the density of populations and intensity of uses; methods for protecting and preserving natural and historic resources; and methods for protecting and preserving prime agricultural lands and activities, see Section 603(b) of the MPC, 53 P.S. Section 10603(b).

Since the adoption of the MPC and the enactment of hundreds of local zoning ordinances pursuant to the same, land use types and development patterns have continued to change and evolve. Some of these changes have prompted the General Assembly to implement legislative solutions, while others are left for navigation at the local level and ultimately in the courts. …

December 19, 2019

Babst Calland Expands Washington, D.C. Environmental Practice

Attorney Ben Clapp Joins Firm

Babst Calland announced today the lateral move of Ben Clapp, who joined as associate in the firm’s Washington, D.C. office in the Environmental, Energy and Natural Resources, and Emerging Technologies practice groups.

For the past decade, Ben Clapp has advised clients on environmental and transactional matters across a wide range of industries including the upstream, midstream, and downstream oil and gas sectors, renewable energy, real estate, utilities, chemicals, manufacturing, mining, pharmaceuticals, pulp and paper, and food and beverage.

“Ben’s move to Babst Calland further represents the firm’s commitment to continue to meet the environmental and regulatory needs of our clients,” said James Curry, Managing Shareholder of the D.C. office.  “Ben Clapp is well-known in industry and among key regulators. We’re very pleased that he has joined our team.”

Mr. Clapp has significant experience advising clients on the environmental components of complex transactions, including identifying and analyzing significant environmental liability and compliance issues arising in connection with mergers and acquisitions, asset sales, securities offerings, project financings, and corporate restructurings.  He works to manage, allocate or mitigate these environmental risks in the client’s best interest.

Mr. Clapp also advises project developers and investors as they encounter state and federal environmental review, facility siting, and permitting requirements, with a particular focus on providing advice on National Environmental Policy Act requirements to clients seeking government agency approvals for large-scale energy and infrastructure projects.

Mr. Clapp earned his J.D., cum laude, from American University Washington College of Law in 2008 and B.A. from the University of Richmond in 1996.

December 19, 2019

Illegal parts: The crackdown on aftermarket defeat devices on vehicles

Smart Business 

(by Jayne Gest with Julie Domike and Gina Falaschi)

Recent enforcement efforts by the Environmental Protection Agency (EPA) have resulted in a marked upswing in cases — civil and criminal — against parts manufacturers and installers of aftermarket defeat devices on vehicles, including some less than obvious targets.

Aftermarket parts are replacement or additional vehicle or engine parts not made by the original equipment manufacturer. Most aftermarket parts do not violate the Clean Air Act, but some are designed to reduce or eliminate the effectiveness of required emissions controls.

“Business owners need to ensure their company-owned vehicles and engines are legal,” says Julie Domike, shareholder at Babst Calland. “Many of these enforcement cases have been against companies or individuals that produce or install ‘tuners,’ engine control module reprogrammers that disable emission control systems with preloaded software (tunes). These defeat devices are obvious enforcement targets. However, other devices or software could also fall in this category; therefore, liability could extend to other aftermarket suppliers.”

Smart Business spoke with Domike and Gina Falaschi, associate at Babst Calland, about the EPA’s enforcement efforts.

Where might businesses be at risk?

Mechanics sometimes look to increase fuel economy, boost the performance of the vehicle, reduce maintenance costs, or reduce vehicle downtime associated with routine maintenance, such as regenerating diesel particulate filters. The illegal methods of doing this involve removing or disabling emissions control devices on vehicles, such as the diesel particulate filter, exhaust gas recirculation valve and selective catalytic reduction system. Because removing vehicle hardware will result in a check engine notification or may put the vehicle into ‘limp home’ mode, severely limiting power, these changes must be accompanied by an illegal alteration of the software to override its response to missing or disabled hardware. …

December 16, 2019

What the Business Roundtable can teach West Virginia

The State Journal

(by Mychal S. Schulz)

In early August 2019, the West Virginia Department of Environmental Protection (WVDEP) announced that oil and natural gas production in West Virginia reached record levels in 2018, the latest of 10 straight years of production increases.

Just a few weeks later, the Business Roundtable, an association of CEOs for some of the largest companies in the United States, released a new Statement on the Purpose of a Corporation (“Statement”) signed by 181 of the association’s members.

How are these events related? And how, together, can they significantly shape the future of West Virginia?

By now, the natural gas within the Marcellus and Utica formations no longer represents a “potential” source of energy. That potential is being tapped, as represented by the announcement from the WVDEP that over 1.8 trillion cubic feet (Tcf) flowed from wells drilled in West Virginia in 2018, a 17% increase over the previous year.

The scramble on what to do with all that natural gas continues to play out throughout the region, from increasing the capacity to carry the gas away through the Mountain Valley and Atlantic Sunrise Pipelines, to the construction of a cracker facility in Beaver County, Pennsylvania, and (perhaps) Belmont County, Ohio, to the continued efforts to build large underground storage areas such as the Appalachian Storage Hub and the Mountaineer Storage Facility.

Each of those efforts, however, assumes something that is already happening — the production of a tremendous amount of natural gas beneath West Virginia’s surface.

Even a casual observer of West Virginia history sees parallels between this moment in time and the period when West Virginia produced coal that fueled American industrialization starting in the late 19th Century. …

December 12, 2019

Pa. Allows Oil and Gas Operators to Drill Cross-Unit Wells

The Legal Intelligencer

(by Megan Mariani and Nicholas Habursky)

On Nov. 7, Pennsylvania Gov. Tom Wolf signed into law Senate Bill No. 694 that permits cross-unit drilling for unconventional oil and gas wells. This new law takes effect on Jan. 6, 2020. A cross-unit well (also known as an allocation well) is a lateral wellbore that crosses between two or more pooled units.

Benefits of Cross-Unit Wells

Standard oil and gas lease forms commonly contain acreage limitations regarding the maximum size of a pooled unit within which development can occur. As a result, prior to the passage of this new cross-unit well legislation, operators in Pennsylvania faced inefficiencies in the form of limitations on the length of laterals and required additional surface locations to develop the entirety of the resource. Operators may desire to utilize cross-unit wells because the wells can increase drilling efficiencies and allow for more strategic operations. Landowners also benefit from cross-unit wells because the use of longer lateral wellbores reduces the surface impact of horizontal drilling by limiting the number of surface locations and vertical wellheads needed to produce from the various units. Lawmakers hope this bill will allow operators to maximize the benefits of drilling technologies and practices. Additionally, legislators believe the passage of the bill will increase tax revenue and reduce the workload on the Department of Environmental Protection.

What Does the Law Do?

Senate Bill No. 694 amended the act of July 20, 1979 (P.L. 183, No. 60—known as The Oil and Gas Lease Act) by adding Section 2.2 that expressly allows an operator to drill a cross-unit well if two conditions are met. First, an operator may drill and produce a cross-unit well if the operator reasonably allocates production from the well to or among each unit the operator reasonably determines to be attributable to each unit. …

December 11, 2019

Lawmakers introduce the Pennsylvania Carbon Dioxide Cap and Trade Authorization Act

The PIOGA Press

(by Kevin Garber and Jean Mosites)

On November 20, members of the Pennsylvania House and Senate referred bipartisan companion bills House Bill 2025 and Senate Bill 950, both known as the Pennsylvania Carbon Dioxide Cap and Trade Authorization Act, to their respective Environmental Resources and Energy Committees for consideration.

Sponsors Senator Joe Pittman (R-Armstrong) and Representative Jim Struzzi (R-Indiana) announced the bills in a press conference on November 19 in response to Governor Tom Wolf’s October 3 Executive Order 2019-07. That order directed the Environmental Quality Board to propose, by July 31, 2020, a carbon dioxide cap-and-trade program for fossil fuel-fired electric power generators which is at least as stringent as that developed under the Regional Greenhouse Gas Initiative (RGGI). (For more detail on RGGI, see the October issue of The PIOGA Press.)

The bills each provide a declaration of policy, procedures for the proper introduction of any program governing carbon dioxide emissions by the Pennsylvania Department of Environmental Protection and the process for submitting that program to the General Assembly for approval.

No current authority to regulate CO2 emissions

Section 2 of the bills finds there is currently no statutory or constitutional authority allowing a state agency to regulate or impose a tax on carbon emissions, and therefore the General Assembly, in consultation with DEP and other agencies, must determine whether and how to do so.

No rulemaking without specific statutory authority
Other than a measure required by federal law, Section 4 prohibits DEP from adopting any measure or taking any action to abate, control or limit carbon dioxide emissions (including joining or participating in RGGI or other state or regional greenhouse gas cap-and-trade program) or establishing a greenhouse gas cap-and-trade program unless the General Assembly specifically authorizes it by statute. …

December 11, 2019

Carl A. Ronald – Intellectual Property Attorney

Emerging Technologies Profile 

What do you do? As an intellectual property attorney, I get to work with amazing and creative people to identify and protect what they have imagined and created. Some of these people are also business owners and I work with them to protect and enforce the reputational goodwill that they have earned with their customers and in the marketplace.

Why do you do what you do? I have always been interested in how things work and as an IP practitioner, I get to learn about new and developing technologies on a daily basis.

Describe your most memorable client interaction. Testing a semi-robotic bone shaver to be used in partial knee replacement on a disembodied leg in a cadaver lab.

Describe a client project (transaction/negotiation/dispute) that you are proud of. I handled a trade dress dispute relating to after-market grip tape for tennis rackets, in which a competitor was claiming they “owned” a large spectrum of the color blue for any grip tape. Facing an insurance coverage rejection, we were able to convince the carrier to reverse course and provide a defense in the infringement case. At the conclusion of a non-jury trial, the case resolved with a much narrower scope of protection for the competitor than they were claiming, which was a win for the client.

When you are not at work, you can be found… Working on house projects, exploring other cities, watching my kids play sports, or playing paddle.

Tell us something about yourself that most people wouldn’t know or guess. A few years ago, I had my own startup called “Othovibe”, which developed a shoe insert that helped train children not to walk on their toes. …

December 5, 2019

Deferring to U.S. EPA’s Interpretive Statement, Court Finds That Groundwater Discharges are Not Regulated by Clean Water Act

Environmental Alert

(by Lisa Bruderly and Gary Steinbauer)

Another district court has weighed in on the continuing debate as to whether the Clean Water Act (CWA) regulates discharges to groundwater that then flow into a surface water. However, unlike previous decisions, the federal district court in Massachusetts has deferred to EPA’s Interpretive Statement on the subject, 84 Fed. Reg. 16810 (April 23, 2019), as its basis for holding that releases of pollutants to groundwater are categorically excluded from the CWA’s permitting requirements. Conservation Law Foundation v. Longwood Venues & Destinations, Inc., Civil Action No. 18-11821 (D. Mass. Nov. 26, 2019).

The Longwood Venues decision comes less than one month after the U.S. Supreme Court heard oral argument in the County of Maui v. Hawai’i Wildlife Fund matter, a pending case addressing this same subject. With the highly anticipated County of Maui decision expected in the summer of 2020, the decision in Longwood Venues provides defendants in citizen suits with a new basis for contesting alleged CWA liability for discharges that travel through groundwater before reaching a jurisdictional surface water. Neither the United States nor any other party in the Supreme Court’s County of Maui case has argued that EPA’s Interpretive Statement is entitled to deference as a reasonable interpretation of the CWA. Rather, these parties contend that the CWA unambiguously provides that discharges to groundwater are not within its scope.   Reliance on the Interpretive Statement injects new fodder into the ongoing debate and litigation over the scope of the CWA’s National Pollutant Discharge Elimination System (NPDES) permit program.

In Longwood Venues, an environmental group sued the owner of a beach club located in southern Cape Cod, claiming that sanitary wastewater released to the groundwater from the club’s onsite wastewater treatment plant was an unpermitted discharge under the CWA. …

December 5, 2019

A proactive approach: How to prepare for California’s sweeping privacy law

Emerging Technologies Legal Perspective

(by Justine Kasznica)

In 2018, California signed into law the first state-level comprehensive privacy act, the California Consumer Privacy Act of 2018 (CCPA), which will go into effect Jan. 1, 2020. In part due to the CCPA’s broad scope and reach beyond California, as well as the large fines and penalties for CCPA noncompliance, the law is influencing and setting a high bar for data protection practices nationwide. Since the CCPA was signed into law, several states have proposed or enacted similar legislation, turning privacy and cybersecurity into a patchwork of state-led experimentation.

We are seeing more states joining California and developing their own privacy laws, which will make it difficult for companies to track and comply with every state’s privacy act, not to mention the privacy regimes in non-U.S. jurisdictions, such as Europe’s General Data Protection Regulation (GDPR).

While some states are beginning to enact or consider uniform approaches to privacy and cybersecurity, such as the NAIC Model Law for Cybersecurity, it will take time for such models to emerge and achieve the requisite consensus. In the absence of a uniform federal and state approach to privacy, businesses need to take the initiative now and be aware of the various state, federal and foreign laws being introduced and enacted — even if their operations may not yet affected.

How does California’s privacy act work?

The California Consumer Privacy Act of 2018 (CCPA) protects consumers who are residents of California by giving them rights to disclosure, access, deletion, control (opt-out and portability rights) as well as imposing a prohibition on antidiscrimination. It also addresses the data privacy rights of children under the ages of 13 and 16. …

November 25, 2019

The Pennsylvania General Assembly Introduces the Pennsylvania Carbon Dioxide Cap and Trade Authorization Act

Environmental Alert

(by Kevin Garber and Jean Mosites)

On Wednesday, November 20, 2019, members of the Pennsylvania House and Senate referred bipartisan companion bills HB 2025 and SB 950, both known as the Pennsylvania Carbon Dioxide Cap and Trade Authorization Act, to their respective Environmental Resources and Energy Committees for consideration.

Sponsors Senator Joe Pittman (R-41) and Representative Jim Struzzi (R-62) announced the bills in a press conference on November 19, 2019 in response to Governor Tom Wolf’s October 3, 2019 Executive Order 2019-07.  That Order directed the Environmental Quality Board to propose, by July 31, 2020, a carbon dioxide cap and trade program for fossil-fuel-fired electric power generators which is at least as stringent as that developed under the  Regional Greenhouse Gas Initiative (RGGI). For more detail on RGGI, see Wolf Administration Announces Plan to Join Northeast Carbon Market.

The bills each provide a declaration of policy, procedures for the proper introduction of any program governing carbon dioxide emissions by the Pennsylvania Department of Environmental Protection, and the process for submitting that program to the General Assembly for approval.

No Current Authority to Regulate CO2 Emissions

Section 2 of the bills finds there is currently no statutory or constitutional authority allowing a state agency to regulate or impose a tax on carbon emissions, and therefore the General Assembly, in consultation with DEP and other agencies, must determine whether and how to do so.

No Rulemaking Without Specific Statutory Authority

Other than a measure required by federal law, Section 4 prohibits DEP from adopting any measure or taking any action to abate, control or limit carbon dioxide emissions (including joining or participating in RGGI or other state or regional greenhouse gas cap-and-trade program) or establishing a greenhouse gas cap-and-trade program unless the General Assembly specifically authorizes it by statute. …

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