http://www.steptoe-johnson.com/Steptoe & Johnson Web site Channel syndication (c) 2012, Steptoe & Johnson. Individual items may carry separate copyright notices and are used by permission from their respective authors.joe.bordonada@steptoe-johnson.comjoe.bordonada@steptoe-johnson.comTue, 07 Feb 2012 12:24:26 GMTen-us15Pennsylvania’s Act 127: New Pipeline Safety Regulation Effective February 20, 2012, Act 127, or the Gas and Hazardous Liquids Pipelines Act (“Act” or “Act 127”), expands the Pennsylvania Public Utility Commission’s (“PaPUC”) jurisdiction over operators who transport gas or hazardous liquids by pipeline or pipeline facility in Pennsylvania by requiring registration and subsequent assessment of costs to all “pipeline operators.” A primary focus of Act 127 is to provide the PaPUC with jurisdiction to regulate the safety aspects of non-public utility onshore gathering lines, and hydrocarbon liquid lines. Under Act 127, entities that transport gas and hazardous liquids by pipeline may now need to register annually with the Commission. Failure to register may result in civil penalties to the pipeline operator subject to the Act. Moreover, these entities will be assessed the Commission’s costs, according to the length of pipeline each entity operates in Pennsylvania. Act 127, which was signed into law on December 22, 2011, requires:  Initial registration by certain operators no later than March 16, 2012, and all subsequent registration by March 31 of each year;  New requirements apply to all “pipeline operators”—persons who own or operate equipment or facilities in Pennsylvania for transport of gas or hazardous liquids by pipeline or pipeline facility, where such equipment and facilities are regulated under federal pipeline safety laws;  Registration must include location, class, length of pipeline, and the country of pipe manufacture for all pipe used to transport gas (excludes valves and other facility equipment); and  Assessment according to the Commission’s cost-per-mile, invoiced annually to each registrant according to the number of miles of pipeline operated in Pennsylvania. In an effort to implement these new requirements as soon as practicable, the Commission will send notice to any entity that it believes falls within the new regulations. The notice will provide instructions regarding registration or provision of proof that an entity is not subject to the act. The Commission has requested a response from those receiving this Act 127 notice and information by mail. While the Commission will notify those entities it believes must comply with the new requirements, it is extremely important to consider whether your pipeline operations are subject to the new requirements in Pennsylvania. Information regarding Act 127 can be accessed on the Commission’s website, http://www.puc.state.pa.us/naturalgas/Act_127_Info.aspx.. . http://www.steptoe-johnson.com/alerts/pipeline.aspxMon, 06 Feb 2012 06:49:20 GMT Sharon O. Flanery Energy Team Leader View Sharon's Bio Russell L. Schetroma Energy Transactions View Russell's Bio W. Henry Lawrence Energy Litigation View Hank's Bio Kevin West Energy Litigation Erin F. Anderson Energy Transactions View Erin's Bio Armando Benincasa Energy Environmental View Armando's Bio Leslie Miller-Stover Energy Transactions View Leslie's Bio  Ryan J. Morgan Energy Transactions View Ryan's Bio Kurt L. Krieger Midstream & FERC View Kurt's Bio William (B.J) Black Energy Transactions View BJ's Bio L. Gil White Government Affairs View Gil's Bio http://www.steptoe-johnson.com/NAPE/default.aspxThu, 02 Feb 2012 13:28:49 GMTAbout Us Steptoe & Johnson is a business-focused firm with particular strengths in energy, labor, employment, and litigation. For nearly a century, Steptoe & Johnson has demonstrated its commitment to quality, devoting personal attention, experience, skill, and resources to client-focused service. Read about the history of Steptoe & Johnson. Steptoe & Johnson Fast Facts: More than 230 attorneys 11 offices in Kentucky, Ohio, Pennsylvania, Texas and West Virginia Over 30 areas of practice Two Fellows of the American College of Trial Lawyers Three Fellows of the American College of Labor & Employment Lawyers AV peer-review rated by Martindale-Hubbell, the highest ranking given 82 lawyers recognized in The Best Lawyers in America® Top listed firm in the U.S. in the area of Professional Malpractice by The Best Lawyers in America® Top listed firm in Ohio, Pennsylvania and West Virginia in a combination of areas including Energy Law, Oil & Gas Law or Natural Resources Law 20 attorneys ranked Leaders in Their Field by Chambers USA Five practices (Corporate/Commercial, Litigation/General Commercial, Real Estate, Natural Resources and Labor & Employment) top-ranked by Chambers USA Law360 Litigation Almanac ranked Steptoe & Johnson 5th in the nation among full-service firms with the highest concentration of employment lawyers Exclusive West Virginia member of TerraLex legal referral network, providing clients with access to legal resources from trusted lawyers in 100 countries worldwide 2007-2010 Law Firm Award for Outstanding Pro Bono Representation of West Virginians Only firm in region to employ an in-house director of recruiting and professional development; career-long training and professional coaching services for lawyers http://www.steptoe-johnson.com/about/default.aspxTue, 31 Jan 2012 15:13:36 GMT Access our Webinar Archive Visit our Employment Essentials Blog Bridgeport, WV Charleston, WV Columbus, OH Houston, TX Huntington, WV Lexington, KY Martinsburg, WV Meadville, PA Morgantown, WV Southpointe, PA Wheeling, WV   http://www.steptoe-johnson.com/default.aspxTue, 31 Jan 2012 09:46:28 GMTSteptoe & Johnson is at the forefront of efforts to shape the law in the rapidly developing Marcellus and Utica Shale gas plays.  Steptoe & Johnson oil and gas attorneys know the unique opportunities and challenges that exist in deep shale plays.  The firm is strategically located throughout the Appalachian basin with offices in  Kentucky, Ohio, Pennsylvania and West Virginia and well-versed in the complicated legal issues associated with the industry.  Team attorneys also frequently travel to the firm’s Houston office to assist mid-continent clients with interests in Appalachia. With 100 years of energy industry knowledge and advocacy throughout the region, Steptoe & Johnson energy attorneys know the critical issues encountered in shale gas development. Steptoe attorneys have proven to be powerful allies on behalf of developers, engaging leading industry players and government officials to pave the way for productive shale gas exploration utilizing horizontal drilling techniques and hydraulic fracturing.   Team attorneys have experience in: Marcellus Shale Well Drilling Permit Requirements Joint Ventures, Farmouts and Joint Development Arrangements Pooling and Unitization Agreements Marcellus Shale Leasing Disputes Surface and Subsurface Ownership Rights Air Quality and Greenhouse Gases   Team members actively leverage leadership roles in the most prominent oil and gas organizations throughout the Appalachian basin to benefit clients.   Energy and Mineral Law Foundation Kentucky Independent Oil and Gas Association Marcellus Shale Coalition Ohio Oil and Gas Association Pennsylvania Independent Oil and Gas Association Rocky Mountain Mineral Law Foundation West Virginia Independent Oil and Gas Association West Virginia Oil and Gas Association http://www.steptoe-johnson.com/qr/shale-plays.aspxWed, 25 Jan 2012 08:15:11 GMTFERC Prohibits Multiple-Affiliate Bidding in Pipeline Open Seasons The Federal Energy Regulatory Commission (“FERC”) approved new regulations in a final rule issued on November 17, 2011, geared toward protecting single bidders and toward the goal of assuring fair distribution of pipeline capacity in the open season context. Companies and companies with affiliates bidding in pipeline open seasons for pipeline capacity should be aware of these new regulations. The final rule, which takes effect 30 days after publication in the Federal Register, prohibits multiple affiliates of the same entity from bidding in an open season for pipeline capacity in which the pipeline may allocate capacity on a pro rata basis, except in cases where an affiliate has an “independent business reason” for submitting a bid. The final rule adopts portions of an April 7, 2011 Notice of Proposed Rulemaking (“NOPR”), but does not include regulations on capacity release that were also included in the original NOPR. These new regulations are the newest in a series of changes FERC has made regarding multiple affiliates bidding in open seasons, and will be codified in 18 C.F.R. Section 284.15. Generally, FERC requires open seasons for the awarding of expansion pipeline capacity to those who value it most; that is, to those willing to take service at the maximum recourse rate.  Pro rata applications are tiebreaker mechanisms used when a pipeline does not have sufficient capacity to meet all maximum bids; that is, bidders receive shares of capacity according to their particular bids. The new rule will apply to all affiliates meeting the definition of “affiliate” in the Standards of Conduct regulations at 18 C.F.R. Section 358.3. This definition also incorporates a rebuttable presumption that voting interests of ten percent or more constitute control. FERC also approved an exception to this new rule for affiliates with an “independent business reason” for submitting a bid, acknowledging that there are a multitude of situations in which prohibiting multiple affiliate bids does not serve the goal of assuring the fair distribution of capacity. For example, there is likely no anticompetitive behavior in play where there are distinct geographical areas serving distinct markets. However, FERC stated that an affiliate is not acting independently if a business unit is being used by its parent in a way that differs from its usual business operations or is acting as an alter ego of the parent or affiliate. In light of the approved rule, companies can protect themselves by resolving concerns regarding the natural gas pipeline open season bidding process before offering bids. Appropriate examination of current bidding operations will reduce unintentional violations of this new rule. For more information regarding FERC’s new prohibition on bidding by multiple affiliates in gas pipeline open seasons, contact Steptoe & Johnson PLLC. http://www.steptoe-johnson.com/alerts/fercprohibits.aspxTue, 24 Jan 2012 12:34:13 GMT NEWS, PUBLCIATIONS & VIDEO Alerts, Updates & Advisories List by Subject List by Date List by Author » Sign Up To Get Notified Media Contact Betsy B. Spellman Chief Marketing Officer (304) 933-8000 info@steptoe-johnson.com FIRM BROCHURE (requires flash player) Download Brochure (PDF document) --> View the Media Kit--> Newsletters Insurance Law Update (IFPAC) Labor & Employment Newsletter Videos  Best Lawyers Video Series Webinars See Upcoming Webinars Webinar Archive » Get Notified about Future Webinars Press Releases Current Releases 2010 Archive 2009 Archive 2008 Archive Social Media Employment Essentials Labor & Employment Law Blog Connect on LinkedIn Become a Fan on Facebook Follow @steptoe_johnson Special Features PDF: A National Survey of Statutory Pooling and Unitization West Virginia First Publications WV First, Editions 1, 2, & 3 101 West Virginia First Facts http://www.steptoe-johnson.com/news-publications/default.aspxWed, 18 Jan 2012 15:56:49 GMT Seminar Agenda  Wednesday, January 25  Time Topic Presenter/s 7:30-8:30a.m. Continental Breakfast & Registration   8:30-8:45 Greetings, Program Overview, Recent Legislative Developments Sharon Flanery and L. Gill White 8:45-9:15  Practical Considerations When Doing Deals in Appalachia Russell Schetroma 9:15-10:00 Tax Considerations in Structuring Deals                 L. Frederick Williams  10:00-10:15 Break 10:15-11:00 Purchase and Sale Agreements Ryan Morgan 11:00-11:45 Joint Development Agreements Sharon Flanery and Leslie Miller-Stover 11:45-1:00p.m. Lunch Panel Discussion with Industry Organization Leaders. Moderator: Sharon Flanery 1:00-1:30 Midstream Issues in Shale Gas Development Kurt Krieger 1:30-2:15 Appalachian Due Diligence Leslie Miller-Stover 2:15-3:00 Break   3:00-3:30 A Regional Look at Pooling Kevin West of EQT 3:30-4:00 Securing Appalachian Oil and Gas Collateral Andrew Kalgreen and Arthur Standish 4:00-4:30 Appalachian Leases Brian Hopkins 4:30-5:30  Appalachian Title Panel Panelists: Andrew Graham, David Hotchkiss and K. Jason Lucas.  Moderator: Timothy McKeen  5:30-6:30 Networking Reception 6:30 Steptoe & Johnson Sponsored Dinner Thursday, January 26 Time Topic Presenter/s 7:30-8:30a.m. Continental Breakfast   8:30-9:15 Keynote presentation - Joint Operating Agreements Professor Bruce M. Kramer 9:15-10:00 New Trends: EPA Enforcement Actions and Air Aggregation Policies Armando Benincasa and W. Henry Lawrence 10:00-10:15 Break   10:15-11:00 Mineral Title Litigation & Litigation Trends in the Utica & Marcellus Lori Dawkins and James Wright 11:00-11:30 10 things You Must Know if You Have Employees in Ohio, PA and WV Todd Sarver and Martin Saunders 11:30 Closing remarks, Adjournment and Lunch   http://www.steptoe-johnson.com/shalegas/agenda.aspxWed, 18 Jan 2012 11:52:24 GMT WV Legislation Regulates Horizontal Gas Wells - A Discussion of Key Facets December 19, 2011 Download a copy of the presentation materials WV Legislation Regulates Horizontal Gas Wells Click here to listen to a recording of the webcast MSHA Citation Defense - An Operator's Guide November 30, 2011 Download a copy of the presentation materials MSHA Citation Defense Click here to listen to a recording of the webcast Ohio title Issues October 26, 2011 Download a copy of the presentation materials Ohio title Issues Click here to listen to a recording of the webcast Shale Gas - Thinking Internationally September 28, 2011 Download a copy of the presentation materials Shale Gas - Thinking Internationally Click here to listen to a recording of the webinar Pipeline Safety in the Utica & Marcellus Shale August 17, 2011 Download a copy of the presentation materials Pipeline Safety in the Utica & Marcellus Shale Click here to listen to a recording of the webinar Water & Air Issues in Shale Gas Development July 20, 2011 Download a copy of the presentation materials Water & Air Issues in Shale Gas Development Click here to listen to a recording of the webinar Click here to download the webinar Special Considerations for Horizontal Drilling in the Utica Shale June 22, 2011 Download a copy of the presentation materials Special Considerations for Horizontal Drilling in the Utica Shale Click here to listen to a recording of the webinar Click here to download the webinar Managing Risk in the Marcellus Shale: What are the Liabilities, and How Can I Avoid Them? May 25, 2011 Download a copy of the presentation materials Managing Risk in the Marcellus shale Click here to listen to a recording of the webinar Click here to download the webinar You Hired WHO? Smart Growth Strategies for Natural Gas Employers April 27, 2011 Download a copy of the presentation materials You Hired WHO? Click here to listen to a recording of the webinar Click here to download the webinar Border Titles: The Interpretation of Deed Language along the Border of North Central WV and Southwest PA February 23, 2011 Download a copy of the presetation materials Border Titles Click here to listen to a recording of the webinar Click here to download the webinar   Marcellus Water Issues: An Overview of Changes in WV, PA and NY December 15, 2010 Download a copy of the presentation materials  Marcellus Water Issues Click here to listen to a recording of the webinar Click here to download the webinar Addressing Selected Title Defects November 30, 2010 Download a copy of the presentation materials Addressing Selected Title Defects Click here to listen to a recording of the webinar Click here to download the webinar Special Considerations In Drafting Lease Provisions for Horizontal Wells September 22, 2010 Download a copy of the presentation materials Special Considerations In Drafting Lease Provisions for Horizontal Wells Click here to listen to a recording of the webinar Click here to download the webinar Crisis Management: What you need to think about when you don’t have time to think August 25, 2010 Download a copy of the presentation materials Crisis Management: What you need to think about when you don't have time to think Click here to listen to a recording of the webinar Click here to download the webinar     FERC Compliance and FERC Compliance Programs - Who Needs Them? July 21, 2010 Download a copy of the presentation materials FERC Compliance and FERC Compliance Programs - Who Needs Them?  Click here to listen to a recording of the webinar Click here to download the webinar West Virginia Energy Law Legislative Update June 23, 2010 Download a copy of the presentation materials West Virginia Energy Law Legislative Update Click here to listen to a recording of the webinar Click here to download the webinar Handling MSHA 110(c) Investigations May 19, 2010 Download a copy of the presentation materials Handling MSHA 110(c) Investigations Click here to listen to a recording of the webinar Click here to download the webinar The Marcellus Shale Webinar Series March 17, 2010 Staying Upright in a World of Horizontal Drilling Download a copy of the presentation materials Staying Upright in a World of Horizontal Drilling Click here to listen to a recording of the webinar February 17, 2010 Marcellus Shale: A Game Changer?  Impact of Implied Covenants on Marcellus Production Rights Download a copy of the presentation materials Marcellus Shale: A Game Changer? Click here to listen to a recording of the webinar   January 20, 2010 Marcellus Shale: Murky Water Issues Download a copy of the presentation materials Marcellus Shale: Murky Water Issues Click here to listen to a recording of the webinar Cap & Trade Webinar Series December 1, 2009 Making Sense of Cap and Trade Download a copy of the Presentation Materials: Making Sense of Cap and Trade December 8, 2009 Cap & Trade vs. The Energy Industries Download a copy of the Presentation Materials: Cap & Trade vs. The Energy Industries December 15, 2009 United States EPA Regulation of Greenhouse Gases View a recorded version of: United States EPA Regulation of Greenhouse Gases Download a copy of the Presentation Materials: United States EPA Regulation of Greenhouse Gases http://www.steptoe-johnson.com/webinar/default.aspxTue, 10 Jan 2012 10:56:51 GMTWV Legislation Regulates Horizontal Gas Wells - A Discussion of Key Facets January 18, 2012 • 12 pm - 1 pm EST  To register for the keynote, please complete the registration form below. http://www.steptoe-johnson.com/shalegas/wv_marcellus_bill.aspxMon, 09 Jan 2012 17:24:13 GMT Commercial Development Energy Health Care Long Term Care   BUSINESS & Corporate Banking & Commercial Transactions Health Care Bond Counsel / Infrastructure Finance Intellectual Property Business Litigation Long Term Care Construction Marcellus & Utica Shale Gas Development Corporate & Transactional Mineral Title & Energy Real Estate Creditor's Rights Privacy Education Private Financing and Related Securities Energy Regulatory & Midstream Services Public Finance Energy Law Energy KY Energy OH Energy PA Energy WV Real Estate Energy Transactional Taxation Environmental & Regulatory Technology Advancement Group (TAG) Government Relations & Lobbying   Litigation Appellate Insurance, First Party & Coverage (IFPAC) Asbestos Long Term Care Business Litigation MSHA Class Actions & Mass Torts Products Liability Creditor's Rights Professional Liability Energy Litigation Toxic Torts Employment Litigation Workers' Compensation General Litigation (Insurance)   Employment Employee Benefits MSHA Employment Litigation Privacy Labor and Employment Workers' Compensation Workplace Safety http://www.steptoe-johnson.com/practices/default.aspxThu, 05 Jan 2012 13:00:44 GMTOn December 20, 2011, U.S. District Judge Gregory Frizzell of the U.S. District Court for the Northern District of Oklahoma found that there was no need to assert the dominance of one energy developer over another. Instead, he held that it is possible for multiple energy producers to work simultaneously from the same surface tract without requiring judicial interference. In The Osage Nation v. Wind Capital Group LLC, the Court refused to enjoin construction of a wind farm when the project benefited public interests and when it was possible for all energy developers to coordinate construction and operation without harming any of the interest owners. The Osage Nation, an Oklahoma Indian tribe, filed litigation on October 18, 2011, asking that Court to address the issues that arise when the interests of multiple energy producers collide. U.S. District Judge Gregory Frizzell of the U.S. District Court for the Northern District of Oklahoma ordered that the matter go to trial on the merits on December 14, 2011, asserting that the straightforward nature of the factual issues warranted a speedy resolution to the dispute. After two days of testimony, Judge Frizzell found that the Osage Nation, owner of the mineral interests for the relevant surface tract, failed to demonstrate that they would be harmed in any way by the wind farm. The Osage Nation case decision ultimately dismissed all claims against the wind farm developers. Refusing to issue an injunction against construction, the Court said that the farm’s operation would serve the public interest and would not unreasonably interfere with the development and marketing of a mineral estate. In its findings, the Court carefully examined all interests involved and the potential harm that enjoining construction of the wind farm would create. The Osage Nation had leased its mineral rights to three oil and gas developers, who could easily work with and around the wind farm construction because any subsurface work by the competing energy producers would occur at different depths. Also, Judge Frizzell found that oil and gas developers were well-versed in altering drilling plans to accommodate complications that arise during construction. Similarly, the Court found that the construction of each wind turbine could easily be adjusted throughout the project, if necessary. While the mineral estate is dominant under Oklahoma law, this Court stressed that the interest owner’s right to use the surface is still limited to what is reasonably necessary for operation and development of a mineral lease. Here, the Osage Nation was unable to demonstrate any harm, because the lessees had not threatened to cancel or even alter the existing contracts and the surface was still readily available for the development of oil and gas. Moreover, the Court focused on what harm, if any, the construction of the wind farm would have on public interests. It found that the new energy source would in fact benefit the public through tax revenue, renewable, clean electricity for approximately 50,000 homes, and the employment of approximately 250 workers throughout its construction. The Osage Nation decision demonstrates that it is both possible and expected that energy producers whose interests overlap will work together, even in grand scale projects. However, it is also an example of the many potential obstacles that arise when the energy interests of one developer extend over the same surface tract as the interests of another.  Developers should consider the types of energy available for production from the surface and subsurface strata of real property, including the number and nature of alternative ownership interests, and the possibility of simultaneous development.  Normal 0 false false false EN-US X-NONE X-NONE MicrosoftInternetExplorer4   /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-qformat:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri","sans-serif"; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:"Times New Roman"; mso-fareast-theme-font:minor-fareast; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi;} On October 18, 2011, The Osage Nation filed a complaint in federal court against Wind Capital Group, LLC, Osage Wind, LLC, and WC Investment Management, LLC.  It asked for an injunction prohibiting the defendants from constructing a wind farm on the surface above its mineral estate.  According to the Osage Nation, such construction would irreparably interfere with its rights of access to its mineral estate and improperly impede exploration and development of oil and natural gas. The Osage Nation asserts that, in Oklahoma, the mineral estate is dominant to the rights of the surface owner; thus, the interference with the mineral estate caused by the wind farm developer’s proposed surface use is prohibited.  Also, claiming that construction of a wind farm violates its federal right to mineral access, the Osage Nation demands a comprehensive prohibition of all impeding surface activities.  It points to federal regulations, which grant the Osage Nation the right to use so much of the surface above its mineral estate as may be reasonably necessary for operations and marketing. While the majority of similar disputes will not involve federal grants of mineral estates or the rights of Indian tribes, the conflict between these parties is a common one.  Determining whether one interest holder is entitled to use an estate at the expense of another estate is a common concern when conflicting rights are involved.  In The Osage Nation v. Wind Capital Group, LLC, it is likely that the defending wind farm developers will argue that these forms of energy production can co-exist peaceably. The Osage Nation asserts, however, that the underground and surface alterations necessary for installation of this wind farm are so detrimental to the mineral estate that future production of oil and natural gas will be impossible.  Consequently, it argues, an injunction prohibiting construction is needed to maintain its rights as mineral owner.  In short, adjudication of this suit will require extensive examination of the interests involved and the potential for interference by one or the other. There is no doubt that the oil and natural gas reserves existing below Osage County, Oklahoma are important energy resources.  Yet it is equally assured that wind farms like the network proposed here have been extremely successful.  Situations like The Osage Nation case point out that it is beneficial for energy producers to examine all interests that could cause conflict and account for those needs during the drafting process for lease agreements. For more information on the essentials of quality drafting and consideration of ways to deal with similar disputes, contact Steptoe & Johnson PLLC. http://www.steptoe-johnson.com/alerts/osagenation.aspxTue, 27 Dec 2011 11:28:41 GMTPennsylvania Ups the Ante on Employee Misclassification 43 P.S. §933:1 et seq. By Martin J. Saunders Proper classification of workers as employees or independent contractors is an issue which frequently confronts employers. Failure to properly classify a worker can result in the employer being liable for the worker’s portion of income and payroll taxes which the employer should have withheld. Additionally, workers have used the Fair Labor Standards Act, and other laws, to challenge their classification; claiming that misclassification as an independent contractor has resulted in denial of wages and benefits they properly were owed. The consequences for misclassification have been almost exclusively monetary, regardless of whether the challenge came from a taxing authority or a worker. The risk of such challenge was low. The rewards for misclassification were a reduction in the employer’s tax obligations and a savings in its wages and benefits costs.  Criminal liability was not a consideration for an employer. Effective February 1, 2011, Pennsylvania increased the price employers in the construction industry might be required to pay for misclassification of workers. The Construction Workplace Misclassification Act defines its scope of coverage to include the erection, demolition, alteration, custom fabrication, building, assembly, site preparations and repair work on any real property or premises - broad enough to encompass pad development etc. in the oil and gas fields. This Act provides that for purposes of unemployment compensation law and workers’ compensation, an individual who performs services in the construction industry for remuneration may be classified as an independent contractor only if the individual has a written contract to perform such services, is free from direction over performance of such services, and is customarily engaged in an independently established trade, occupation, profession or business of providing such services.  Individuals only will be deemed to be engaged in an independently established trade, occupation, profession or business in the commercial or residential building construction industry if they: Possess the essential equipment needed to perform such service, Realize a profit or loss from performing the service, Perform the service through a business in which they have a proprietary interest, Maintain a location separate from the person for whom the services are being performed, Maintain $50,000 liability insurance, and Previously performed similar services for another while free from their direction and control or holds themselves out as available to and performs the same services while free from direction and control. The failure to withhold taxes or pay workers' compensation or unemployment compensation contributions, moreover, will not be considered in determining whether an individual is properly classified. An employer, its officer or agent, failing to properly classify an individual, provide coverage or pay contributions for unemployment or workers' compensation, violates the Act unless they, in good faith, believe that the individual qualifies as an independent contractor. Similarly, a person who is not an employer violates the Act by contracting with an employer knowing that the employer intends to misclassify a worker. Intentional violation of the Act constitutes a misdemeanor.  Negligent violation of the Act constitutes a summary offense.  Alleged violation of the Act will be referred to the Secretary of Labor and Industry for investigation, who may issue an order to show cause why a violation should not be found. After a hearing, the Secretary may impose civil penalties of $1,000 to $2,500, seek a stop work order, or refer the matter to the Attorney General or District Attorney for criminal prosecution. Finally, the Act prohibits retaliation for making a good faith complaint about misclassification or providing information on non-compliance.  Adverse action taken within 90 days of protected activity creates a rebuttable presumption of retaliation. This Act attempts to level the playing field between contractors who have followed the rules and those who have not. In light of this statute, Pennsylvania construction contractors now have civil and criminal incentives to review and ensure that their workers are properly classified. http://www.steptoe-johnson.com/employee_misclassification.aspxTue, 06 Dec 2011 14:24:05 GMTMineral Interest v. Wind Farm Conflict On October 18, 2011, the Osage Nation, an Oklahoma Indian tribe, filed litigation asking the U.S. District Court for the Northern District of Oklahoma to address the issues that arise when multiple energy producers’ interests collide. In The Osage Nation v. Wind Capital Group, LLC, The Osage Nation has asserted that its rights as the mineral interest owner trump those of a corporation planning to construct a wind farm in and on the surface overlying the Osage Nation’s mineral estate, and has requested an injunction prohibiting construction. It is likely these parties will know whose interests will prevail sooner than expected. At the urging of defendant Wind Capital Group, LLC, U.S. District Judge Gregory Frizzell has now ordered that this battle for prevailing energy interests will go to trial on December 14, 2011. Importantly, Judge Frizzell ordered that this trial be on the merits and not merely an injunction hearing, because the factual issues raised in the Osage Nation’s complaint, which only ask whether or not the construction of the wind farm will interfere with the Osage nation’s access to and extraction and development of the minerals underlying the disputed surface, are straightforward and identical to those that would be raised if the trial were held later. When it requested an early trial date, the Wind Capital Group argued that construction must begin by mid-December 2011 if the wind farm is to be completed by the conclusion of 2012, which is necessary to qualify for an imperative federal tax credit. The Osage Nation opposed this timeline, averring that discovery of necessary evidence could not be completed so quickly and that its experts would not have sufficient time to review the project proposed. Judge Frizzell’s order for an early trial date cannot be viewed as an indication that one party or the other will prevail at trial. However, it does show sensitivity to the wind farm’s necessary construction deadline. By ensuring that these parties will have a timely answer to their dispute, the Court sends a message that it will not allow lengthy litigation to destroy one energy producer’s interests. A prompt conclusion to the dispute in The Osage Nation case should aid all energy producers who find themselves in conflict with other interest owners by providing guidance in drafting lease and operating agreements. It has been long established that the rights to natural gas and oil below the surface can be sold separately from the rights to control activity on that surface, such as the development of a wind farm. However, it is equally clear that the owners of natural gas and oil rights must be granted sufficient access through the surface to adequately extract and develop these minerals. Some states prohibit the separation of wind and surface rights. But in states like Oklahoma, multiple energy producers are likely to own interests that affect the same surface, leading to problems like that in The Osage Nation case. It is clear that each estate owner has valid arguments for the preservation of their development capabilities. It will be interesting to see how the court balances the rights of the various estate owners. Energy producers should monitor the ever-changing field of interest-owner conflicts in preparation for drafting their own operating and lease agreements. For more information on the consideration of ways to deal with disputes similar to those presented in The Osage Nation case, contact Steptoe & Johnson PLLC. http://www.steptoe-johnson.com/alerts/windfarm.aspxTue, 06 Dec 2011 08:29:25 GMTWest Virginia Circuit Court Ruling Offers Guidance for Deed Interpretation The Preston County Circuit Court of West Virginia (the “Court”) was recently charged with determining the ownership of a one-seventh interest in a 225 acre oil and gas tract. The deed purported to convey “the surface only.” Under the facts and circumstances of the case, the Court held that the oil and gas also passed unto grantee. At issue was the conveyance of: "one-seventh interest in the surface only with the hereditaments and appurtenances1 thereto belonging, (the coal and mining privileges having been previously sold)." The deed did not contain an express reservation of oil and gas under the property. The Court held that the one-seventh interest in oil and gas in place passed unto the grantee. The Court determined that the grantor’s intent could not be discerned within the four corners of the deed, and that the conveyance language was ambiguous, thus, permitting the Court to consider extrinsic evidence of the grantor’s intent.     In the case, the plaintiff and the defendants offered competing interpretations of the legal impact of the conveyance. The plaintiff asserted that the grantor’s intent was to vest all right, title, and interest in the property, including oil and gas, in the plaintiff's predecessor in title.  The defendants, of course, asserted that the conveyance was, true to its face, of the “surface only,” with the grantor effectively reserving a one-seventh interest in the oil and gas underlying the property.    Ultimately, the Court construed the term “hereditaments and appurtenances” as including the oil and gas within and underlying the property.  As such, the Court determined that the grantor’s intent was to vest all right, title, and interest to the oil and gas underlying the property in the plaintiff via his predecessors in interest.  Therefore, the defendants’ claims of ownership were extinguished.  In making its determination, the Court was persuaded that the grantor and her successors in interest did not act in a manner consistent with an intent to retain an ownership interest in the oil and gas. Neither the grantor, nor her successors, conveyed, devised, leased, or mortgaged their purported interest in the oil and gas; nor did they ensure the interest was properly assessed for real property tax purposes on the Preston County landbooks.          The holding in this case is limited to the facts of the case and provides a view as to how the Circuit Court of Preston County of West Virginia would view similar cases with similar facts. However, it also provides some guidance on the value of extrinsic evidence, or lack thereof: while a court of competent jurisdiction will always be the final arbiter in determining whether a document is ambiguous, landmen, abstractors and title attorneys should locate and analyze all information that is available in the county courthouse including assessment history and leasing history when conducting title examination.  1 “Hereditament” includes real property; land, Black’s Law Dictionary 743 (8th ed. 2007). “Appurtenance” is “something that belongs to or is attached to something else, Black’s Law Dictionary 111  (8th ed. 2007).  W.Va. Code § 36-3-10 (1923) (Repl. Vol. 2005) states “Every deed conveying land shall, unless an exception be made certain therein, be construed to include all buildings, privileges, and appurtenances of every kind belonging to the land therein embraced.” http://www.steptoe-johnson.com/deed_ruling.aspxWed, 30 Nov 2011 14:44:27 GMT Thank you for your interest.  Your application is being reviewed, a marketing representative will be in touch shortly.  Seating is limited for this seminar. Return to Homepage   http://www.steptoe-johnson.com/shalegas/thank-you.aspxWed, 30 Nov 2011 10:31:38 GMT To request an invitation, please complete the form below. click here.-->   http://www.steptoe-johnson.com/appalachia/form.aspxTue, 29 Nov 2011 13:58:31 GMT  Thank You Normal 0 false false false EN-US X-NONE X-NONE MicrosoftInternetExplorer4 /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-qformat:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri","sans-serif"; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:"Times New Roman"; mso-fareast-theme-font:minor-fareast; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi;} Thank you for submitting your information.  A representative will contact you shortly to confirm your reservation. http://www.steptoe-johnson.com/appalachia/thank-you.aspxTue, 29 Nov 2011 13:47:38 GMT   If you're buying, selling, or financing assets in the Appalachian Basin, this seminar is for you! Learn how deals in Appalachia are different and how to safely address those differences. Acquisition & Disposition of Shale Assets in Appalachia January 25-26, 2012, Hilton Garden Inn, Southpointe Business Park, Pittsburgh, PA Seating is limited, click here to register today Featured Speakers Sharon O. Flanery, Esq., Steptoe & Johnson Sharon Flanery concentrates her practice in the areas of energy and natural resources law and leads the Steptoe & Johnson Energy Team. Russell L. Schetroma, Esq., Steptoe & Johnson Russ Schetroma focuses his practice in the areas of energy and oil and gas law. Special Lunch Message From Bruce Kramer, Esq., McGinnis, Lochridge, & Kilgore L.L.P. & Professor Emeritus at Texas Tech University School of Law. Bruce Kramer is a preeminent oil, gas, energy, and land-use legal scholar and co-author of several books that have become the definitive references for energy lawyers, including two multi-volume treatises, The Law of Pooling and Unitization and Williams and Meyers Oil and Gas Law (since 1996), as well as the last three editions of the Manual of Oil and Gas Terms. Bruce’s books and legal articles have been cited as authority in numerous court rulings and appellate opinions. He also is an authority on land-use, zoning, and the conflicts that arise between mineral property owners. Seminar Agenda Hotel Information Doubletree Houston, Houston – Downtown 400 Dallas Street, Houston TX 77002 713.759.0202 | view map Wednesday, April 20, 2011 7:45am - 8:45am Continental Breakfast & Registration 8:45am - 9:00am Greetings and Program Overview Presented by Sharon O. Flanery 9:00am - 10:00pm Practical Considerations in Doing Deals in Appalachia Presented by Russell L. Schetroma 10:00am - 10:15am Break 10:15am - 11:15am Appalachian Title Presented by Andrew S. Graham 11:15am - 12:15pm Appalachian Due Diligence - Part I Presented by Leslie Miller-Stover 12:15pm - 1:30pm Lunch Keynote Message: Bruce Kramer 1:30pm - 2:00pm Appalachian Due Diligence - Part II Presented by Leslie Miller-Stover 2:00pm - 2:30pm Appalachian Regulatory Overview Presented by Kurt L. Krieger 2:30pm - 4:00pm Appalachian Leases, Farmouts, AMI, Joint Operations and Other Essential Arrangements Presented by Ryan J. Morgan & R. Neal Pierce 4:00pm - 4:15 pm Break 4:15pm - 5:15pm Appalachian Purchase and Sale Agreements Presented by Sharon O. Flanery & Ryan J. Morgan 5:45pm - 7:00pm Networking Reception     Thursday, April 21, 2011  7:30am - 8:15am Continental Breakfast  8:15am - 9:00am Regulatory Issues Presented by Armando F. Benincasa 9:00am - 9:45am Litigation in Appalachia, ADR, and Dispute Avoidance Presented by Patricia Proctor 9:45am - 10:00am Break 10:00am - 11:15am Securing Appalachian Oil and Gas Collateral Presented by Arthur M. Standish  11:15am - 12:30pm Lunch Closing Remarks / Adjournment with Sharon O. Flanery http://www.steptoe-johnson.com/appalachia/default.aspxTue, 29 Nov 2011 12:31:09 GMTSteptoe & Johnson Know-How Normal 0 false false false EN-US X-NONE X-NONE MicrosoftInternetExplorer4       /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-qformat:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; text-align:justify; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri","sans-serif"; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:"Times New Roman"; mso-fareast-theme-font:minor-fareast; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi;} Normal 0 false false false EN-US X-NONE X-NONE MicrosoftInternetExplorer4       /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-qformat:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; text-align:justify; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri","sans-serif"; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:"Times New Roman"; mso-fareast-theme-font:minor-fareast; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi;} Insight and ideas are two things our clients tell us they value most. Watch these video tips from some of our Best Lawyers in America® to see one of the ways we deliver know-how to our clients. Click on any image below to view the video. Conducting Successful Internal Investigations Bryan R. Cokeley Part I: OSHA Issues in the Workplace David E. Dick Part II: OSHA Issues in the Workplace David E. Dick Joint and Several Liability W. Randolph Fife Part I: Pooling Statutes in NY, MD, OH, PA & WV Part II: Pooling Statutes in NY, MD, OH, PA & WV Sharon O. Flanery Challenges of Energy Litigation Steven P. McGowan 5 Tips for Making a Union Organizer's Job Tougher John R. Merinar, Jr. Tips for Dealing with Increased EPA Enforcement Initiatives Katerina E. Milenkovski Deliberate Intent in West Virginia C. David Morrison Marcellus Shale and the Litigation Lifecycle James J. A. Mulhall Mining or MSHA Litigation - Who Should Be Interviewed? Jeffrey K. Phillips Challenges of Mineral Titles in Appalachia Russell L. Schetroma Return to Work Issues in West Virginia H. Toney Stroud 5 Tips for Compliance with the Open Governmental Proceedings Act John C. Stump Project Finance John C. Stump http://www.steptoe-johnson.com/know-how/default.aspxTue, 22 Nov 2011 12:04:06 GMT