The Pennsylvania Bar Association & the The Pennsylvania Bar Association & the Widener Environmental Law Center Present Widener Environmental Law Center Present w elcome to the summer edition of the 2013 PBA Environmental & Energy Law Section Newsletter! The days are getting longer, the weather is warming up, and so are environmental and energy issues. In the few months since our spring edition, much has transpired in the environmental and energy world, here in Pennsylvania for certain, and beyond our borders as well. But before getting into substance, there’s an important change to how you communicate with us here at the Newsletter in the form of a new email address. Our old email address is no longer in service, so going forward you should reach us at [email protected]. Now that you’ve taken note of our new email address, let’s get to the meat of the Newsletter. Our first article this quarter is authored by Mr. Joel Burcat and summarizes the PA Supreme Court’s treatment of Butler v. Charles Powers Estate. In this significant holding, the Court upheld PA’s ancient property rule— known as the Dunham Rule—whereby mineral rights sales or reservations do not include natural gas and/or oil rights, which are subsurface rights that must be explicitly transferred or reserved. In our second article, Mr. Ronald Frank presents a unique take on oil and gas operations, as seen through the lens of mergers and acquisitions, which he believes the current financial climate and market conditions will support continued growth of. Mr. Frank illustrates several techniques used in these transactions and some of the accompanying legal issues to consider. In our final article, Mr. Eugene Dice compares recent PA and Third Circuit court decisions differentiating drilling rights based on whether the land and subsurface rights are state– or federally- owned. Mr. Dice then contrasts these holdings with a California decision in which the government owns both the land and subsurface rights. Also, please join us in congratulating Newsletter Staff members Brian Calabrese and Charles Foster on their recent graduation from Widener Law! On the topic of Widener Law, the school will be hosting a Marcellus Shale and Sustainability Conference on September 27, 2013. Please see pages 14-16 for more information. As always, we at the Newsletter appreciate your readership, as well as any comments, suggestions, or article submissions. We are always working to make this publication truly yours and enjoy any opportunity to speak with our members about how to be more responsive to your needs. We can be contacted at our new email address at [email protected]. Respectfully, Brandon J. Pierce Editor-in-Chief Volume 3, Issue 2 Volume 3, Issue 2 W ELCOME FROM THE E DITOR - IN -C HIEF J UNE 2013 INSIDE THIS ISSUE: T HE E NVIRONMENTAL & E NERGY L AW S ECTION N EWSLETTER Newsletter Team 2 Butler v. Charles Powers Estate: Owners of Mar- cellus Shale Gas May Now Rest Easily by Joel R. Burcat 3 Observations on Mergers and Acquisitions in the Marcellus/Utica Shale Patch by Ronald W. Frank 3 Drilling on Publically Owned Lands By Eugene E. Dice 3 Legislative Developments 4 Regulatory Developments 8 Court Opinions 9 EHB Opinions 11 Upcoming Event: Widener Law Marcellus Shale & Sus- tainability Conference 14
Transcript
The Pennsylvania Bar Associat ion & the The Pennsylvania Bar Associat ion & the
Widener Environmental Law Center PresentWidener Environmental Law Center Present
w elcome to the summer edition of the 2013 PBA Environmental &
Energy Law Section Newsletter! The days are getting longer, the weather is warming up, and so are environmental and energy issues. In the few months since our spring edition, much has transpired in the environmental and energy world, here in Pennsylvania for certain, and beyond our borders as well. But before getting into substance, there’s an important change to how you communicate with us here at the Newsletter in the form of a new email address. Our old email address is no longer in service, so going forward you should reach us at [email protected]. Now that you’ve taken note of our new email address, let’s get to the meat of the Newsletter. Our first article this quarter is authored by Mr. Joel Burcat and summarizes the PA Supreme Court’s treatment of Butler v. Charles Powers Estate. In this significant holding, the Court upheld PA’s ancient property rule—known as the Dunham Rule—whereby mineral rights sales or reservations do not include natural gas and/or oil rights, which are subsurface rights that must be explicitly transferred or reserved. In our second article, Mr. Ronald Frank presents a unique take on oil and gas operations, as seen through the lens of mergers and acquisitions, which he believes the current financial climate and market conditions will support continued growth of. Mr. Frank illustrates several techniques used in these transactions and some of the accompanying legal issues to consider.
In our final article, Mr. Eugene Dice compares recent PA and Third Circuit court decisions differentiating drilling rights based on whether the land and subsurface rights are state– or federally-owned. Mr. Dice then contrasts these holdings with a California decision in which the government owns both the land and subsurface rights. Also, please join us in congratulating Newsletter Staff members Brian Calabrese and Charles Foster on their recent graduation from Widener Law! On the topic of Widener Law, the school will be hosting a Marcellus Shale and Sustainability Conference on September 27, 2013. Please see pages 14-16 for more information. As always, we at the Newsletter appreciate your readership, as well as any comments, suggestions, or article submissions. We are always working to make this publication truly yours and enjoy any opportunity to speak with our members about how to be more responsive to your needs. We can be contacted at our new email address at [email protected]. Respectfully,
Brandon J. Pierce Editor-in-Chief
Volume 3, Issue 2Volume 3, Issue 2
WELCOME FROM THE EDITOR- IN-CHIEF
J U N E 2 0 1 3
I N S I D E T H I S I S S U E :
THE ENVIRONMENTAL & ENERGY LAW SECTION NEWSLETTER
Newsletter Team 2 Butler v. Charles Powers Estate: Owners of Mar-cellus Shale Gas May Now Rest Easily by Joel R. Burcat 3 Observations on Mergers and Acquisitions in the Marcellus/Utica Shale Patch
by Ronald W. Frank 3
Drilling on Publically Owned Lands
By Eugene E. Dice 3
Legislative Developments 4
Regulatory Developments 8
Court Opinions 9
EHB Opinions 11
Upcoming Event: Widener Law Marcellus Shale & Sus-tainability Conference 14
NEWSLETTER TEAM Editor-in-Chief Brandon J. Pierce, Esq. Assistant Consumer Advocate Pennsylvania Office of Attorney General Office of Consumer Advocate [email protected]
Staff Authors and Editors Jonathan W. Johnson, Esq. Johnson Legal [email protected] Legislative Developments Manager Matthew J. McDonnell, Esq. Contract Attorney, Gemondo McQuiggan LLP [email protected] Regulatory Developments & Major Policies Manager Mark R. Wieder, Esq. Counsel to Commissioner Wayne E. Gardner Pennsylvania Public Utility Commission [email protected] Court & EHB Opinions Manager Brian P. Calabrese Widener Law, Class of 2013 [email protected] Legislative Developments Charles R. Foster, IV Widener Law, Class of 2013 [email protected] Regulatory Developments, Major DEP Policies
Advisors Andrew T. Bockis, Esq. Saul Ewing LLP [email protected] John W. Carroll, Esq. Pepper Hamilton LLP Chair, PBA Environmental & Energy Law Section [email protected] Jennifer L. Cohen, Esq. South Jersey Industries [email protected]
Advisors (continued) John C. Dernbach, Distinguished Professor Director, Environmental Law Center Widener School of Law [email protected] Philip L. Hinerman, Esq. Fox Rothschild LLP [email protected] Michael T. Shatto, Sections Administrator Pennsylvania Bar Association [email protected] Maxine M. Woelfling, Esq. Morgan, Lewis & Bockius LLP [email protected] Matthew L. Wolford, Esq. Wolford Law Firm [email protected]
Institutional Support Pennsylvania Bar Association Environmental & Ener-gy Law Section Widener University School of Law Environmental Law Center
Volume 3, Issue 2
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Send your material to our email address. Provide sufficient contact information. The editorial staff
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Butler v. Charles Powers Estate: Owners of Marcellus Shale Gas May Now Rest
Easily
Joel R. Burcat
On April 24, 2013, the Pennsylvania Supreme Court released its much anticipated opinion in Butler v. Charles Powers Estate, reversing the decision of the Pennsylvania Superior Court, and upholding Penn-sylvania’s ancient property law. The Superior Court appeared to have opened the door to a change or modification of an important rule of Pennsylvania property law, called the Dun-ham Rule. That rule held that oil and gas are not “minerals” for purposes of the sale or reservation of subsurface property rights. Had the Superior Court’s determination stood, owners of property may have been able to argue that neither Marcellus shale nor the gas it contains were conveyed in cer-tain deeds. Simply put, the Pennsylvania Supreme Court reversed the Superior Court and upheld Pennsylvania’s unique rule. For owners of Marcellus shale gas, the Butler deci-sion slammed the door on arguments that might have resulted in a reexamination of thousands of titles. Read or download the full article here. Observations on Mergers and Acquisitions in the
Marcellus/Utica Shale Patch
Ronald W. Frank
The discovery of how to efficiently access the gas in the Marcellus and Utica shale formations by hori-zontal drilling and advanced hydrofracturing tech-niques has led to a boom in oil and gas merger and acquisition (“M&A”) activity in the New York, Penn-sylvania, Ohio and West Virginia regions. Environ-mental and energy lawyers are increasingly in the middle of such transactions as their clients become buyers of, or sellers to, other oil and gas companies. As development of the Marcellus/Utica shale for-mations matures, the M&A activity now seen in the Eagle Ford shale formation in Texas may be dupli-cated. With Henry Hub natural gas spot prices ap-
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proaching $4.50 per million BTUs (natural gas pric-es since 2000 have ranged from $2.66 to $13.42 per million BTUs) the M&A activity should further increase. The value of oil and gas transactions in 2012 was $321 billion, up 7% from 2011’s $300.6 billion. Due in large part to low interest rates, which lessen the cost of borrowing the purchase price and provide low returns on invested cash, 76% of mergers and acquisitions in 2012 were for cash, up from 73% in 2011. When gas prices were lower in recent years the finance activity was somewhat diverted to midstream investments in gas processing facilities, gas gathering systems, and pipelines to handle natural gas liquids (“NGLs”), which activities had a higher margin than natural gas sales. This article discusses a few of the legal techniques used for oil and gas mergers and acquisitions, re-views some of the legal issues that should be con-sidered, and discusses a few transaction techniques that use interests in real estate and operational contracts as the vehicle for the transaction. Read or download the full article here.
Drilling on Publically Owned Lands
Eugene E. Dice
This article covers three recent court opinions dealing with drilling on state and federal land: two in Pennsylvania and one in California. In Minard Run Oil Co., v. U.S. Forest Service, a Third Circuit de-cision, private entities owned the subsurface rights, while the federal government owned and managed the surface rights. Belden & Blake v. DCNR, a PA Su-preme Court decision, pitted the right of access by the owner of an oil and gas estate underlying a state park against the authority of a state agency to regulate and protect surface use. The article then contrasts those holdings with a recent California case, Center for Biological Diversity v. Bureau of Land Management, in which the government owned both the surface and the oil/gas in part of Central California’s Monterey Shale Formation. Read or download the full article here.
Alternative Energy House Bills House Bill 1151 – (Miller, R – York). HB1151 is a bill amending the act of November 30, 2004 (P.L.1672, No.213), known as the Alternative Ener-gy Portfolio Standards Act, further providing for definitions. HB1151 referred to House Environ-mental Resources and Energy Committee on Apr. 9, 2013.
House Bill 1339 – (Galloway, D – Bucks). HB1339 is a bill providing for the Property Assessed Clean En-ergy Program; and authorizing municipalities and municipal authorities to provide clean energy fi-nancing to residential and commercial property owners. HB1339 referred to House Environmental Resources and Energy Committee on May 7, 2013.
Appliances
Senate Bills
Senate Bill 739 – (Yaw, R – 23). SB739 is a bill amending the act of July 9, 2008 (1st Sp.Sess., P.L.1873, No.1), known as the Alternative Energy Investment Act, further providing for pollution con-trol technology projects and for Commonwealth Financing Authority. SB739 final passage on June 11, 2013, and referred to House Environmental Re-sources and Energy Committee on June 12, 2013.
House Bills
House Bill 1324 – (Briggs, D – Montgomery). HB1324 is a bill providing for minimum energy ef-ficiency standards for certain appliances and equipment; providing for the powers and duties of the Department of Environmental Protection and
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the Attorney General; and establishing the Appli-ance Energy Efficiency Fund. HB1324 referred to House Environmental Resources and Energy Com-mittee on May 6, 2013.
Oil and Natural Gas
Senate Bills Senate Bill 780 – (Kasunic, D – 32). SB780 is a bill providing for surface owner protection. SB780 re-ferred to Senate Environmental Resources and En-ergy Committee on Apr. 1, 2013.
Senate Bill 790 – (Greenleaf, R – 12). SB790 is a bill amending Title 58 (Oil and Gas) of the Pennsylva-nia Consolidated Statutes, in unconventional gas well fee, further providing for distribution of fee. SB790 referred to Senate Environmental Resources and Energy Committee on Apr. 1, 2013.
Senate Bill 738 – (Yaw, R – 23). SB738 is a bill providing for distribution system extension and expansion plans to increase natural gas usage in this Commonwealth. SB738 re-reported as amend-ed, June 3, 2013 [Senate].
House Bills
House Bill 880 – (Conklin, D – Centre). HB880 is a bill amending Title 58 (Oil and Gas) of the Pennsyl-vania Consolidated Statutes, in development, fur-ther providing for well permits. HB880 referred to House Environmental Resources and Energy Com-mittee on Mar. 11, 2013.
House Bill 881 – (Conklin, D – Centre). HB881 is a bill amending the act of April 9, 1929 (P.L.177, No.175), known as The Administrative Code of 1929, providing for toll-free response telephone number to report suspected violations of oil and gas laws. HB881 referred to House Environmental Resources and Energy Committee on Mar. 11, 2013.
House Bill 950 – (Vitali, D – Delaware). HB950 is a bill providing for a moratorium on leasing lands owned and managed by the Department of Conser-vation and Natural Resources for the purposes of oil and natural gas development. HB950 referred to House Environmental Resources and Energy Com-mittee on Mar. 11, 2013.
House Bill 986 – (Everett, R – Lycoming). HB986 is a bill requiring well operators to provide complete water analysis results to the Department of Envi-ronmental Protection under certain circumstances. HB986 referred to House Environmental Resources and Energy Committee on Mar. 13, 2013.
House Bill 1442 – (White, D – Allegheny, Beaver, Washington). HB1442 is a bill amending the act of July 20, 1979 (P.L.183, No.60), entitled "An act reg-ulating the terms and conditions of certain leases regarding natural gas and oil," adding definitions; providing for payment information to interest own-ers for accumulation of proceeds from production; and making editorial changes. HB1442 referred to House Environmental Resources and Energy Com-mittee on May 28, 2013.
House Bill 1443 – (White, D – Allegheny, Beaver, Washington). HB1443 is a bill amending Title 58 (Oil and Gas) of the Pennsylvania Consolidated Statutes, providing for lease extended by produc-tion. HB1443 referred to House Environmental Re-sources and Energy Committee on May 28, 2013.
House Bill 994 – (Perti, R – Bucks). HB994 is a bill amending Title 58 (Oil and Gas) of the Pennsylva-nia Consolidated Statutes, in development, further providing for well permits, for general gas storage reservoir operations and for regulations. HB994 referred to House Environmental Resources and Energy Committee on Mar. 14, 2013.
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Transportation
House Bills
House Bill 307 – (Evankovich, R – Armstrong, Westmoreland). HB307 is a bill amending the act of January 8, 1960 (1959 P.L.2119, No.787), known as the Air Pollution Control Act, providing for the Clean Vehicles Program. HB307 referred to Senate Environmental Resources and Energy Committee on Apr. 26, 2013.
Environmental Issues
Air House Resolutions
House Resolution 300 – (Gibbons, D – Beaver, But-ler, Lawrence). HR300 is a Concurrent Resolution memorializing Congress to re-evaluate the en-hanced emission inspection program as required by the Federal Clean Air Act Amendments of 1990. HR300 referred to House Environmental Resources and Energy Committee on May 6, 2013.
Forestry House Resolutions
House Resolution 223 – (Tallman, R – Adams, York). HR223 is a Resolution memorializing the Congress of the United States to support Congress-man Glenn Thompson of Pennsylvania's efforts to pass H.R. 979, known as the Forest Products Fair-ness Act of 2013, and urging each member of Con-gress from Pennsylvania to support his efforts. HR223 Adopted, June 4, 2013 (198-0) [House].
House Resolution 134 – (Marsico, D – R, Dauphin). HR134 is a Resolution recognizing April 26, 2013, as "Arbor Day"; promoting public participation in the celebration; and further recognizing the value
of trees to our environment. HR134 remarks found in House Journal Page April 22, 2013.
Land Use Senate Bills
Senate Bill 941 – (Yudichak, D – 14). SB941 is a bill amending the act of June 28, 1995 (P.L.89, No.18), known as the Conservation and Natural Resources Act, further providing for forests. SB941 referred to Senate Environmental Resources and Energy Com-mittee on May 15, 2013.
Minerals
House Bills
House Bill 1444 – (White – D, Allegheny, Beaver, Washington). HB1444 is a bill providing for aban-donment of mineral rights in real property and for the recording by surface owners of title to mineral rights in their real property after ten years of non-use by the subsurface owner; and establishing a right of action to settle title to mineral rights. HB1444 referred to House Environmental Re-sources and Energy Committee on May 28, 2013.
Recreation Senate Bills
Senate Bill 659 – (Wozniak, D – Cambria, Clearfield, Clinton, Somerset). SB659 is a bill protecting and managing sport shooting clubs and firing ranges in this Commonwealth; establishing the Range Clean-up Trust Fund and the Task Force for the Protec-tion and Management of Sport Shooting and Train-ing Ranges; and providing for limited immunity for sport shooting and training ranges. SB659 referred to Senate Environmental Resources and Energy Committee on Mar 13, 2013.
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Senate Bill 494 – (Alloway, R – 33). SB494 is a bill amending the act of February 2, 1966 (1965 P.L.1860, No.586), entitled "An act encouraging landowners to make land and water areas available to the public for recreational purposes by limiting liability in connection therewith, and repealing cer-tain acts," further providing for liability for land-owners to recreational users; and providing for at-torney fees and court costs. SB494 referred to Sen-ate Environmental Resources and Energy Commit-tee on Apr. 3, 2013.
Senate Bill 988 – (Waugh, R – 28). SB988 is a bill amending the act of November 26, 1978 (P.L.1375, No.325), known as the Dam Safety and Encroach-ments Act, further providing for definitions, for proof of financial responsibility and for duties of owners. SB988 referred to Senate Environmental Resources and Energy Committee on June 4, 2013.
Waste Senate Bills
Senate Bill 783 – (Boscola, D – 18). SB783 is a bill amending the act of July 28, 1988 (P.L.556, No.101), known as the Municipal Waste Planning, Recycling and Waste Reduction Act, defining "affected municipality"; further providing for per-mit requirements, for powers and duties of the De-partment of Health and for site limitation; provid-ing for public participation in expansion of existing facilities; further providing for protection of capaci-ty and for host municipality benefit fee; authorizing an affected municipality benefit fee; providing for effect of multiple violations; and making editorial changes. SB783 referred to Senate House Environ-mental Resources and Energy Committee on Apr. 1, 2013.
Senate Bill 857 – (Waugh, R – 28). SB857 is a bill amending the act of July 7, 1980 (P.L.380, No.97), known as the Solid Waste Management Act, provid-ing for testing prior to sewage sludge application.
SB857 referred to Senate Environmental Resources and Energy Committee on Apr. 16, 2013.
Senate Bill 946 – (Baker, R – 20). SB946 is a bill amending the act of January 24, 1966 (1965 P.L.1535, No.537), known as the Pennsylvania Sew-age Facilities Act, further providing for definitions, for official plans and for permits. SB946 referred to Senate Environmental Resources and Energy Com-mittee on May 15, 2013.
House Bills
House Bill 1058 – (Goodman, D – Schuylkill). HB1058 is a bill amending the act of July 28, 1988 (P.L.556, No.101), known as the Municipal Waste Planning, Recycling and Waste Reduction Act, fur-ther providing for site limitation. HB1058 referred to House Environmental Resources and Energy Committee on Mar. 25, 2013.
House Bill 1194 – (O’Brien, D – Philadelphia). HB1194 is a bill requiring retailers of pharmaceuti-cal drugs to have in place a system for the ac-ceptance and collection of pharmaceutical drugs for proper disposal; providing for remedies; and con-ferring powers and duties on the Attorney General, the Department of Environmental Protection and the Department of Health. HB1194 referred to House Environmental Resources and Energy Com-mittee on Apr. 13, 2013.
House Resolutions
House Resolution 117 – (Davis, D – Bucks). HR117 is a Resolution urging State agencies and communi-ties, businesses and residents of this Common-wealth to adopt zero-waste initiatives. HR117 re-ferred to House Environmental Resources and En-ergy Committee on Mar. 11, 2013.
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House Resolution 142 – (Cruz, D – Philadelphia). HR142 is a Resolution urging the City of Philadel-phia to establish a year-round program providing for the safe removal and adequate disposal of ille-gally discarded waste tires. HR142 referred House Environmental Resources and Energy Committee on Mar. 12, 2013.
Water
Senate Bills
Senate Bill 723 – (McIlhinney, R – 10). SB723 is a bill amending the act of May 1, 1984 (P.L.206, No.43), known as the Pennsylvania Safe Drinking Water Act, further providing for definitions, for ap-plications and requests for approval for facilities and activities in the critical zone, for wellhead pro-tection, for surface water intake protection and for civil and criminal penalties; and making editorial changes. SB723 referred to Senate House Environ-mental Resources and Energy Committee on Mar. 20, 2013.
Senate Bill 784 – (Boscola, D – 18). SB784 is a bill amending the act of July 7, 1980 (P.L.380, No.97), known as the Solid Waste Management Act, further providing for definitions, for permit and license ap-plication requirements and for granting, denying, renewing, modifying, revoking and suspending per-mits and licenses; providing for referendum on sit-ing of municipal waste landfills or expansion of ex-isting municipal waste landfills; and further provid-ing for bonds. SB784 referred to Senate House En-vironmental Resources and Energy Committee on Apr. 1, 2013.
Senate Bill 785 – (Boscola, D – 18). SB785 referred to amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, further providing for penal-ties for exceeding maximum weights for landfills and waste hauling. SB785 referred to Senate House Environmental Resources and Energy Committee on Apr. 1, 2013.
House Bill 1137 – (Gabler, R – Clearfield, Elk). HB1137 is a bill amending the act of October 4, 1978 (P.L.864, No.167), known as the Storm Water Management Act, further providing for failure of municipalities to adopt implementing ordinances. HB1137 referred to House Environmental Re-sources and Energy Committee on Apr. 8, 2013.
House Bill 1212 – (Maloney, R – Berks). HB1212 is a bill amending the act of June 22, 1937 (P.L.1987, No.394), known as The Clean Streams Law, further providing for powers and duties of department. HB1212 referred to House Environmental Re-sources and Energy Committee on Apr. 17, 2013.
Wildlife House Resolutions
House Resolution 199 – (McCarter, D – Montgom-ery, Philadelphia). HR199 is a Resolution declaring the week of April 14 through 20, 2013, as "Bat Pro-tection and Awareness Week" in Pennsylvania. HR199 referred to House Environmental Resources and Energy Committee on Apr. 17, 2013.
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Public Utility Commission Proposed Rulemakings
Paper Copy and Electronic Copy Filing Require-ments
The Pennsylvania Public Utility Commission (Commission), on February 28, 2013, adopted a proposed rulemaking order amending existing Commission paper and electronic filing require-ments by eliminating additional paper copies of certain documents, increasing the size limit of eFiled documents and dispensing with the require-ment for a paper copy of eFiled documents less than 250 pages. All of these suggested changes are included in this Proposed Rulemaking. These pro-posed changes to the procedural regulations will result in savings of time and resources for both par-ties appearing before the Commission and Commis-sion staff by reducing paper copy filings.
Environmental Quality Board Rules and Regulations
Acceptance of Rulemaking Petition for Study
43 Pa.B. 2327, April 27, 2013
On April 16, 2013, the Environmental Quality Board accepted a rulemaking petition for study un-der 25 Pa. Code Chapter 23 (relating to Environ-mental Quality Board policy for processing peti-tions—statement of policy). The petition, submit-ted by the Brodhead Watershed Association, re-quests the amendment of 25 Pa. Code § 93.9c (relating to Drainage List C) to redesignate Cran-berry Creek in Monroe County from High Quality-Cold Water Fishes, Migratory Fishes (HQ-CWF, MF) to Exceptional Value (EV) designation.
The Environmental Hearing Board (Board) propos-es to amend Chapter 1021 (relating to practice and procedure) by adding procedural rules which have the following objectives: 1) to provide the regulat-ed community, the Department of Environmental Protection and other potential litigants with more specific guidance on how to represent their inter-ests before the Board; 2) to improve the rules of practice and procedure before the Board; and 3) to institute additional and modified rules of practice and procedure before the Board to require elec-tronic filing and service in nearly all matters before the Board.
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Supreme Court of Pennsylvania
Ball, et al v. Bayard Pump Co. v. Marley Pump Co., Nos. 18 & 19 M.A.P. 2011 (May 28, 2013). This case involves 45 plaintiffs, which included numerous “bellwether” plaintiffs that were ordered by the tri-al court to have separate trials for four test-cases. The Superior Court found that the trial court abused its discretion in ordering the separate trials, the Supreme Court found that the Superior Court erred in that decision and ordered that the decision be reversed and the jury verdict reinstated. The claims of all the plaintiffs stemmed from a gas leak by the defendants which seeped through the ground and water table to infiltrate various resi-dences.
Butler, J., et al v. Charles Powers Estate, et al - No. 27 MAP 2012 (April 24, 2013). The Pennsylvania Supreme Court reversed the decision of the Penn-sylvania Superior Court, which resulted in uphold-ing the long-standing Dunham rule, which states that there is a rebuttable presumption that if, in connection with a conveyance of land, there is a reservation or an exception of ‘minerals’ without any specific mention of natural gas or oil, the word ‘minerals’ was not intended by the parties to in-clude natural gas or oil.
Commonwealth Court of Pennsylvania Elizabeth Twp. Sanitary Authority v. Mi-gnogna, 1893 C.D. 2012 (May 21, 2013). Sani-tary Authority filed a lien seeking to recover $28,248.84 in costs associated with abatement of a nuisance. The Authority’s alleged nuisance being that the Mignognas improperly and illegally placed dirt, stones, rocks, and debris on a severely sloped hillside at the rear of their property, crushing pipes, dislodging manholes, and causing raw sewage to backup into a neighbors basement and nearby stream. The Court dismissed the lien with prejudice because the affidavits were not executed pursuant to Pa. R.C.P. No. 76 and are therefore hearsay.
MarkWest Liberty Midstream & Resources, LLC v. Clean Air Council, and PaDEP, 1508 C.D. 2012 (May 15, 2013). Court vacates in part and remands an EHB opinion granting in part and denying in part MarkWest’s motion for a protective order and the Clean Air Council’s motion to compel discovery. The Court officially adopts the standard in Crum for requests for protective orders under Rule 4012(a)(9). Crum states the following: if a par-ty establishes that the requested information con-stitutes trade secrets/confidential business infor-mation, then the burden shifts to the party seeking discovery to demonstrate that production is rele-vant and necessary, and that the necessity out-weighs the harm of disclosure. In Re: Condemnation By PPL Electric Utili-ties Corp. of Real Estate Situate in Schuylkill County, PA, Being The Property of WMPI Land Corp. ~ Appeal of: WMPI Land Corp., 1389 C.D. 2012 (May 8, 2013). Court reverses trial court order and finds that 15 Pa. C.S. § 1511(c) requires the PUC’s prior approval before PPL can condemn WMPI’s land for perpetual easement and PPL did not seek that approval here.
Transportation Services, Inc. v. Underground Storage Tank Indemnification Bd., 38 C.D. 2012 (April 24, 2013). Court reverses decision of the Board of the Pennsylvania Underground Stor-age Tank Indemnification Fund denying reimburse-ment of expenses incurred by Transportation Ser-vices, Inc. in cleaning up contamination caused by a leak from one of its underground storage tanks. The Court disagreed with the Board that Transpor-tation Services was not current on its storage tank capacity fees when the contamination was discov-ered because the Company had pumped out, closed its tanks and timely paid all capacity fees assessed.
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Northampton Area SD, et al. v. ZHB of the Twp. of Lehigh, Northampton Cnty. and Lehigh Twp., 680 C.D. 2012 (April 9, 2013). Court reverses trial court and Lehigh Township ZHB determination denying Northampton Area School District’s plan to install a solar energy field on its property to supply power to the school. The proposed solar energy field is permitted as a right of the property because the ordinance specifically allows solar energy units as an “accessory use” in every Zoning District.
Superior Court of Pennsylvania
Ruspi v. Glatz, Clerkin, PPL Corp., et al., 2013 PA Super 131 (May 24, 2013). Court affirmed trial court’s grant of summary judgment in favor of PPL. The trial court properly decided as a matter of law that PPL enjoyed immunity from Appellants’ claims under the Recreational Use of Land and Water Act (RULWA), 68 P.S. §§ 477-1─477-8. No exception applies here. The Federal Power Act does not preempt the traditional role of the state to deter-mine tort liability, and specifically does not preempt RULWA. This matter arose out of a nighttime boating colli-sion that occurred on Lake Wallenpaupack, which PPL Holtwood, LLC owns and operates for the gen-eration of hydroelectric power, under a license is-sued by the Federal Energy Regulatory Commission (FERC) pursuant to the Federal Power Act, 16 U.S.C. §§ 791a-828c.3 The license, in pertinent part, re-quires PPL to hold the lake open to “substantial public use,” free of charge, “by providing public ac-cess to the lake at boat launches, campgrounds and public beaches for recreational purposes.” Appel-lants argued that federal law preempted state law immunity from tort liability, and alternatively, as-serted that PPL knew boaters congregated at a lo-cation called Party Cove and consumed alcoholic beverages, but failed to warn or to take precaution-ary measures, precluding RULWA immunity.
Hovis v. Sunoco, Inc., 2013 PA Super 54 (March 18, 2013). Court affirmed trial court’s grant of summary judg-ment for Appellee Sunoco, Inc. (“Sunoco”), on the on the basis that Sunoco was not an owner or oper-ator for purposes of the Storage Tank and Spill Pre-vention Act (“the Tank Act” or “the Act”), 35 P.S. §§ 6021.101 -6021.2104 (2012), in a dispute involv-ing release of gasoline from an underground stor-age tank at a service station in Sewickley, Allegheny County. In 1999, Appellants reported the leak to the Penn-sylvania Department of Environmental Protection, and sought recovery from the Pennsylvania Under-ground Storage Tank Indemnification Board (“USTIF”) for costs related to cleanup of the con-tamination. USTIF found that Appellants were eligi-ble for 100% reimbursement of their cleanup costs if they could show that the release occurred after February 1, 1994. However, subsequently, USTIF ordered forensic testing of the site and determined that some of the spilled gasoline predated the 1994 cut-off date. Based upon this information, USTIF prorated Appellants’ reimbursement to 43% of the total cleanup costs. Appellants then commenced this action against Sunoco under § 1305(c) of the Tank Act, seeking recovery for the cleanup costs and diminution in the value of the property arising from the leaking storage tanks, because Sunoco had previously owned and operated the station.
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Borough of St. Clair v. PaDEP and Blythe Twp. – 2012-148-L. (Opinion and Order on Discovery Mo-tions, March 18, 2013). St. Clair’s Motion to Compel Answers to Deposition Questions and Other Dis-covery and to Extend Discovery Deadlines is grant-ed to the limited extent that the documents listed in the subpoena addressed to FKV must be pro-duced. Blythe Township’s Motion for a Protective Order is denied to the same extent. St. Clair may serve the subpoena addressed to FKV, LLC.
Primrose Creek Watershed Assoc. v. PaDEP and New Hope Crushed Stone & Lime Co. – 2011-135-L (Consolidated with 2011-136-L). (Opinion and Or-der on Motion to Compel, March 20, 2013). A regu-lar employee of the Department who is not going to be called as a witness by the Department but who collected facts, prepared reports, and rendered opinions can be compelled to testify at a deposition regarding the performance of his job duties, includ-ing opinions previously formed. He can be com-pelled to explain his old opinions, but he may not be compelled to render new opinions. Therefore, the Motion to compel was denied.
Primrose Creek Watershed Assoc. v. PaDEP and New Hope Crushed Stone & Lime Co. – 2011-135-L (Consolidated with 2011-136-L). (Opinion and Or-der on Motion to Compel Depositions, March 21, 2013). The Board denied a motion seeking to com-pel the depositions of two individuals who are to be called as expert witnesses because some of the facts they acquired and opinions they developed were in anticipation of litigation. The Board has in Dauphin Meadows v. DEP, 1999 EHB 829, 833, held that a person who served in multiple capacities but was retained from day one with an eye toward tes-tifying as an expert witness is covered under Rule 4003.5. However, where the person is not original-ly retained or specially employed as an expert wit-ness but is later designated as such the law is not clear. Although the Board has allowed depositions on occasion under these circumstances the Board states that such depositions should be the excep-
C O U R T O P I N I O N S E N V I R O N M E N T A L H E A R I N G B O A R D A D J U D I C A T I O N S , O P I N I O N S , A N D O R D E R S
tion rather than the rule and will in this matter en-force Rule 4003.5’s procedures, requirements, and potential sanctions for any person who is to be called as a witness that will be asked to render an expert opinion at the hearing.
Bucks Co. Water & Sewer Authority v. PaDEP – 2012-138-L (Opinion and Order on Motion to Con-solidate, March 27, 2013.) Northampton Bucks Co. Municipal Authority’s Motion to Consolidate is granted. BCWSA shall on or before April 15, 2013 submit a proposed new case management order, with the concurrence of the other parties if possi-ble, allowing for an additional period for BCWSA to conduct discovery regarding the objections set forth in NBCMA's notice of appeal.
Bucks Co. Water & Sewer Authority v. PaDEP – 2012-152-L (Opinion and Order on Motion to Con-solidate, March 27, 2013.) Northampton Bucks Co. Municipal Authority’s Motion to Consolidate is granted. BCWSA shall on or before April 15, 2013 submit a proposed new case management order, with the concurrence of the other parties if possi-ble, allowing for an additional period for BCWSA to conduct discovery regarding the objections set forth in NBCMA's notice of appeal.
Northampton Bucks Co. Municipal Authority v. PaDEP and Bucks Co. Water & Sewer Authority – 2012-155-L (Opinion and Order on Motion to Con-solidate, March 27, 2013.) Northampton Bucks Co. Municipal Authority’s Motion to Consolidate is granted. BCWSA shall on or before April 15, 2013 submit a proposed new case management order, with the concurrence of the other parties if possi-ble, allowing for an additional period for BCWSA to conduct discovery regarding the objections set forth in NBCMA's notice of appeal.
Dirian v. PaDEP – 2011-155-L (Adjudication, April 5, 2013). The Board dismissed an appeal of an or-der issued by the Department to an owner of a resi-dential park and supplier of water for human con-
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sumption who has been operating a community water system without a permit or treatment in vio-lation of the Safe Drinking Water Act (SDWA). The Department’s regulations defining a community water system allow a system that consists of a group of facilities, even where they are not inter-connected, in the same geographic location to be grouped as one single system where the entire sys-tem is part of the same enterprise.
Kelly v. PaDEP – 2012-142-L (Opinion and Order on Motion to Dismiss, May 6, 2013). A motion to dismiss is denied for failure to comply with the Board’s rules. The EHB did not reach the merits of the motion because it is procedurally defective for several reasons.
Gadinski v. PaDEP – 2009-174-M (Adjudication May 31, 2013). The Board dismisses a third party appeal of DEP’s issuance of a permit revision to a mining company’s reclamation plan allowing for the beneficial use of coal ash for mine reclamation purposes. The EHB finds that the Appellants have not carried their burden to demonstrate why DEP’s decision to approve the permit revision should be reversed.
PaDEP v. Klecha – 2011-021-CP-C (Adjudication, June 4, 2013). The Board assessed a civil penalty in the amount of $45,530 for violations of the Clean Streams Law and costs in the amount of $2,451.52. The Defendant did not dispute that he conducted unpermitted earth disturbance activities at the Site in violation of the Clean Streams Law and had a cost savings of $50,000 by continuing the unper-mitted activities rather than complying with the law.
Mellinger v. PaDEP – 2012-163-M (Opinion and Or-
der on Petition for Supersedeas, June 5, 2013). The
Board denied Appellant’s Petition for Supersedeas,
without hearing, under the authority of 25 Pa. Code
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§ 1021.62(c). There was a lack of particularity in
the facts pleaded. There was a lack of particularity
in the legal authority cited. Finally, Appellant failed
to state grounds sufficient to support granting of a
supersedeas.
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law.widener.edu
Marcellus Shale Development and Pennsylvania: A Path to Sustainable Energy?Presented by Widener University School of Law and Widener University Environmental Law Center
Symposium Chair: Distinguished Professor John C. DernbachCo-Chair: Professor James R. May
September 27, 2013 — 8:30 am–5:00 pm(includes breakfast, lunch, reception and 7.0 CLE credits)
Widener University School of LawAdministration Building Room A180Harrisburg, Pennsylvania Campus
Please download registration form at law.widener.edu/CLE
Seven (7.0) CLE credits available in DE and PA (includes one ethics credit)
3800 Vartan WayP.O. Box 69380Harrisburg, PA 17106-9380
Marcellus Shale Development and Pennsylvania: A Path to Sustainable Energy?
September 27, 2013; 8:30 am–5:00 pmPennsylvania is the epicenter of a rapidly evolving national effort todevelop deep shale gas reserves. In less than a decade, aconvergence of technology, market forces, and political factors hasfundamentally transformed the hydraulic fracturing of Marcellusshale for gas extraction. What was very recently a commerciallyunproven endeavor has grown to become a fully-developedenterprise, with game changing consequences for thecommonwealth, the United States, and even the world.
The first of its kind, this conference will ask just what hydraulicfracturing means for an environmentally sustainable America—onethat promotes economic development, social well-being, andenvironmental protection and restoration concurrently. This conferencewill assess what we have learned from Pennsylvania’s experience todate about the role of law in fostering sustainability of shale gasproduction, how this translates elsewhere, and what more needs to bedone so that hydraulic fracturing contributes to a sustainable future.
Registration form available at law.widener.edu/CLE
For more information, contact: Sandy Graeff at [email protected] or 717-541-3965
For accessibility and special needs requests, contact Sandy Graeff at 717-541-3965 at least one week in advance.
Marcellus Shale Development and Pennsylvania: A Path to Sustainable Energy? September 27, 2013 — 8:30 am–5:00 pm Seven (7.0) CLE credits available in DE and PA (including one ethics credit) Widener University School of Law, Administration Building Room A180 Harrisburg, Pennsylvania Campus On-campus parking will be available. PAYMENT INFORMATION CLE registration $150; Widener Law Alumni/Government Lawyers $125; Non-CLE registration $125 You can pay by check or credit card. Make check payable to Widener University. Please return the completed registration form with your check or credit card information to:
Widener University School of Law Attn: Sandra Graeff 3800 Vartan Way P.O. Box 69380 Harrisburg, PA 17106-9380 or Fax the completed registration form with credit card information to Sandra Graeff, fax: 717-541-3991 FOR MORE INFORMATION Phone: 717-541-3965 E-mail: [email protected] Registration Name ____________________________________________________________________________
