September 11, 2023

WVDEP Notifies Facilities of PFAS Reporting Requirements

Charleston, WV and Pittsburgh, PA

Environmental Alert

(by Kip Power and Matt Wood)

At the end of August 2023, the West Virginia Department of Environmental Protection (WVDEP) began sending letters to facilities that the agency believes may be subject to new requirements to report production or use of specific per- and polyfluoroalkyl substances (PFAS).  The requirements are included in the recently passed House Bill 3189, also known as the PFAS Protection Act (“the Act”), which Governor Jim Justice signed into law on March 28, 2023.

PFAS have been linked to effects on the human immune system, cardiovascular problems, and cancer.  They are often referred to as “forever chemicals” because of their persistence in the environment and tendency to accumulate in people and animals over time. Broadly, the Act is intended to identify sources of PFAS that are impacting drinking water sources in West Virginia.

WVDEP’s recent form letter notifies recipients that under the Act, facilities that discharge to surface water under an applicable National Pollution Discharge Elimination System (NPDES) permit or to a Publicly Owned Treatment Works (POTW) under an industrial pretreatment program, “which manufacture or knowingly use or have used” certain PFAS in their production process since January 1, 2017, are required to report such use to WVDEP on or before December 31, 2023.  Specifically, the Act requires that these facilities report any PFAS that the United States Geological Service (USGS) found in its recent study of raw water from 279 West Virginia public water systems.  Under the Act, facilities are also required to report their use of other PFAS that WVDEP identifies as harmful to human health and potentially present in detectable levels in West Virginia waters. …

September 5, 2023

Clean Energy Tax Credits Tied to Labor Law Compliance

Pittsburgh, PA and Washington, DC

Firm Alert

(by John McCreary and Jim Curry)

The Inflation Reduction Act of 2022 (IRA) created a number of tax incentives in the form of credits and deductions to encourage development of alternative clean energy generation capacity. On August 28, 2023, the U.S. Department of the Treasury published a Notice of Proposed Rulemaking (NPR) detailing the conditions for receipt of the tax incentives and the potential penalties for non-compliance with those conditions by “taxpayers” – the developers and operators of qualifying clean energy projects. Increased Credit or Deduction Amounts for Satisfying Certain Prevailing Wage and Registered Apprentice Requirements, 88 Fed.Reg. 60018 (August 28, 2023). Uniquely, many of these incentives and potential penalties are premised on apprenticeship and prevailing wage requirements imposed by the Federal Davis-Bacon Act, 40 U.S.C. §3141, et seq. and its Related Acts (DBA). Compliance with prevailing wage and registered apprenticeship standards is now required for projects seeking the full value of various clean energy tax credits. Failure to comply with the rules will result in developers missing out on the full value of the credit and potentially the imposition of $5,000 multiplied by the total number of laborers and mechanics who were paid below the prevailing wage rate.

Until now the Davis-Bacon and Related Acts (Prevailing Wage Acts or PWA) have been applicable only to contractors actually employing “mechanics or laborers” on federally-funded projects “for construction, alteration, or repair” of “public buildings and public works” 40 U.S.C. §3142(a). The NPR, however, pushes compliance upstream to developers and producers seeking the tax advantages created by the IRA, who in all likelihood do not employ anyone covered by the Prevailing Wage Acts. This Alert provides an overview of how the NPR incorporates these labor laws into the clean energy tax incentives. …

September 1, 2023

EPA acts to usurp State’s standards for stream impairment classification

Charleston, WV

GO-WV

(By Kip Power and Robert Stonestreet)

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 (WVS-CI) 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. …

September 1, 2023

DEP Releases Interim Final Environmental Justice Policy

Pittsburgh, PA and Washington, DC

Environmental Alert

(by Sean McGovern and Amanda Brosy)

The Shapiro administration recently released its Interim Final Environmental Justice Policy (“Interim Final Policy“), along with a link to the latest Environmental Justice Mapping and Screening Tool (“PennEnviroScreen”). The Interim Final Policy is due to go into effect when the final version is published in the Pennsylvania Bulletin, which is expected to take place on September 16, 2023.

Pennsylvania’s Environmental Justice Policy

The Commonwealth first adopted an Environmental Justice Policy (EJ Policy) in 2004 to provide citizens in environmental justice communities enhanced public participation opportunities during certain DEP permit application processes. In 2018, DEP circulated a draft revised policy for public comment, but ultimately withdrew the proposed revisions in 2020 following receipt of public comments. After conducting further outreach in 2021, DEP proposed an updated policy that would refine and expand the scope of the withdrawn 2018 revisions. On March 12, 2022, DEP released a draft of the EJ Policy for public comment, and subsequently received more than 1,200 comments during the comment period. The Interim Final Policy is the latest version of the EJ Policy to have been released by DEP since the comment period closed last spring.

Important Features of the Interim Final Policy

The Interim Final Policy will likely have a tangible impact on permitting and enforcement processes for various industries going forward. Below are some important provisions to be aware of:

  1. The Pennsylvania EJ Mapping and Screening Tool – PennEnviroScreen
    The Interim Final Policy requires use of the PennEnviroScreen tool, which will replace DEP’s current EJ Areas Viewer tool.

    2. …

August 31, 2023

Department of Labor Proposes Rule Change Permitting Unions to Participate in OSHA Workplace Walk-Throughs

Pittsburgh, PA

Employment Alert

(by John McCreary and Janet Meub)

On August 29, 2023, the United States Department of Labor (DOL) published a Notice of Proposed Rulemaking that would permit union representatives and other nonemployees to participate in workplace inspections conducted by Occupational Safety and Health Act Compliance and Safety Officers (CSHOs).

Pursuant to the current law, Section 8(e) of the Occupational Safety and Health Act (OSHA) provides “a representative of the employer and a representative authorized by employees the opportunity to accompany CHSOs during the physical inspection of the workplace for the purpose of aiding the inspection.” The OSHA and 29 CFR part 1903 endow the CSHO with the authority to resolve any disputes about who the employer and employee representatives are and to deny any person from participating in the inspection whose conduct interferes with a fair and orderly investigation. The CSHO also has the authority to permit additional employer representatives and representative authorized by employees to participate in the workplace walk-throughs. See 29 CFR 1903.8(a).

Historically, OSHA mandated that the representative authorized by employees for worksite inspections be an actual employee. Over the years, OSHA has offered guidance on its interpretation of section 1903.8(c) and the definition of “representative authorized by employees” for OSHA walk-through inspections. In 2003, OSHA issued a letter of interpretation (Racic Letter) in response to the question of whether a union representative who files a complaint on behalf of a single worker could then act as a walk-through inspection representative in a workplace that had no labor agreement. OSHA determined that there was “no provision for a walkaround representative who has filed a complaint on behalf of an employee of the workplace.” See, ID OSHA – 2023-0008-0002. …

August 31, 2023

I-9 procedures are changing and non-compete agreements could be next

Pittsburgh, PA

Smart Business

(By Adam Burroughs featuring Alex Farone)

Many employers have questions about changes, both made and proposed, to certain onboarding issues — an update to the I-9 verification process as well as proposed federal changes to non-competition agreements.

Smart Business spoke with Alexandra G. Farone, Attorney at Law at Babst Calland, about what employers need to know about the I-9 changes and what’s happening with non-compete agreements.

What’s happening with the I-9 verification process?

The I-9 employment eligibility verification process involves looking at documents to confirm the employee is who they say they are and that they are authorized to work in the U.S. The longstanding requirement that employers review those documents in person was relaxed during the COVID-19 pandemic, allowing it to be done remotely. As of August 1, 2023, the categorical relaxation of the in-person verification requirement ended. Employers now are required to resume in-person I-9 verification for all new employees, whether themselves or via an authorized agent, unless they are a registered user of the web-based platform E-Verify in good standing.

In addition, employers are also now required to re-verify in person anyone who had been verified remotely during the COVID-19 pandemic, and to do so by the end of August.

To address the challenge of re-verifying remote employees, employers who are not registered E-Verify users can designate an ‘authorized agent’ — who can be anyone, regardless of qualification — to act on behalf of the company to verify in person the employee’s identification and work authorization documents. But no matter who acts as the agent, the liability for inaccurate verification remains solely with the employer. So, if an agent verified someone who is not actually authorized to work in the U.S., the employer is going to be penalized. …

August 24, 2023

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

Pittsburgh, PA

Pretrial Practice & Discovery

American Bar Association Litigation Section

(By Christina Manfredi McKinley and Joseph Schaeffer)

Mallory is undoubtedly a significant development in the Supreme Court’s personal jurisdiction jurisprudence, but its practical impact remains to be seen.

The Fourteenth Amendment to the U.S. Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. art. XIV, § 1. For corporations, the question of what constitutes due process—and, specifically, where the corporation can be sued for conduct unrelated to the 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 forums 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 and where it maintains its principal place of business. This test has been a practical one and has provided (some degree of) both 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. 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. Mallory, 600 U.S. ____, slip op. (2023).

Personal and General Jurisdiction

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 the parties in front of it.  …

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. …

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