The Storage Tank and Spill Prevention Act (the “Act”) created the Underground Storage Tank Indemnification Fund (the “Fund”) to provide clean-up and third party liability coverage for owners and operators of underground storage tanks (USTs).  The claimant must meet certain requirements to recover remediation costs from the Fund.  Specifically, the claimant must be current on all required fees under the Act.

In what will likely prove to be a controversial decision, the Staff of the Pennsylvania Public Utility Commission denied the request of First Energy Solutions (FES0 to be the assignee of two default service supply contracts, currently held by BP, for two tranches of supply each with Metropolitan Edison Company and West Penn Power Company. FEs has appealed Staff's action to the Commission itself.

The Pennsylvania Supreme Court has adopted rule changes that will result in shorter appellate briefs based on a “word count” approach of the type used in the Federal Rules of Appellate Procedure.  The current volume limits are 70 pages for principal briefs and 25 pages for reply briefs. Under the new rules, the volume limits are a “word count” of 14,000 words for principal briefs (approximately 56 pages assuming 250 words per page) and 7,000 words for reply briefs (approximately 28 pages assuming 250 words per page).  A brief based on word count must be accompanied by certification of counsel that the brief complies with the limit.  The rule permits continued use of a page count to determine volume, but at the reduced page count levels of 30 pages for principal briefs and 15 pages for reply briefs.

In an effort that is likely to fall short of the expectations of more than a few participants, the Pennsylvania Public Utility Commission (“Commission”) officially shared its vision of the next steps for encouraging more competitive electricity markets in the Commonwealth.

In a long anticipated Tentative Order, the Pennsylvania Public Utility Commission (“PUC”) finally revealed its vision for the “end state” of the retail electricity market in Pennsylvania.  The problem; many observers believe that the “cure” will kill the patient.

Jersey and New York gasoline distributors continue to struggle to supply gas stations with diesel and gasoline product while federal and state legislatures both suspend and invoke regulations in order to assist and police gasoline distributors.

Pursuant to the Proclamation of Disaster Emergency issued by Governor Corbett on October 26, 2012, the Secretary of Transportation, Barry J. Schoch, has signed a waiver extending the hours drivers may drive in a single shift from 11 to 14 hours.  This waiver applies to drivers carrying motor fuels, heating oil, or propane.

The Pennsylvania Legislature recently amended the Second Class County Port Authority Act, 55 P.S. §§551-563.5, to, among other things, transfer jurisdiction over certain passenger transportation services occurring in Allegheny County from the Port Authority of Allegheny County (“Port Authority”) to the Pennsylvania Public Utility Commission (“PUC”).  Prior to the amendments, jurisdiction over certain types of passenger service in Allegheny County, such as scheduled route, paratransit and airport transfer, resided with the Port Authority.

The Pennsylvania Public Utility Commission (“PUC”) caused quite a stir with its August 16, 2012 Order[1] that partially approved the jointly filed default service plans of the four First Energy electric utility affiliates serving in Pennsylvania.

On August 21, 2012, the Court of Appeals for the District of Columbia struck down the EPA’s Cross State Air Pollution Rules, also known as the Transport Rules, that governed the emissions reduction responsibility of 28 upwind states – including Pennsylvania -- under the “good neighbor” provisions of the Clean Air Act (“CAA”).  EME Homer City Generation L.P. v. EPA, No. 11-1302 (D.D.C. August 21, 2012)(Kavanaugh, J. on the opinion, joined by Judge Griffith).  The “good neighbor” provisions of the CAA require that upwind states prevent sources within their borders from emitting pollution that “contributes significantly” to downwind states’ nonattainment of federal air quality standards.  The EPA adopted the Transport Rules in August 2011 to define the “good neighbor” obligations for two emissions: sulfur dioxide (SO₂) and nitrogen oxide (NOₓ).

The D.C Court of Appeals found that the Transport Rules exceeded the EPA’s authority on two independent bases.  First, the court found that the Transport Rules require states to reduce emissions by more than their own “significant contribution” to a downwind states’ nonattainment of air quality standards, thereby exceeding the authorization under the CAA.  The Court found that the EPA properly set specific numerical air quality threshold levels for each pollutant to determine if the upwind states “significantly contributed” to downward states’ failure to meet the federal air quality standards for each of the relevant emissions.  Slip op. at 15-16.  This enabled the EPA to identify the upwind states that were subject to the “good neighbor” obligations for each pollutant.  But then the EPA used regional, cost-based modeling to determine how much those upwind states would have to reduce pollutants to meet their “good neighbor” obligations.  This, the Court concluded, exceeded the EPA’s statutory authorization:

"The Transport Rule includes or excludes an upwind State based on the amount of that upwind State’s significant contribution to a nonattainment area in a downward state.  That much is fine.  But under the Rule, a State then may be required to reduce its emissions by an amount greater than the “significant contribution” that brought it into the program in the first place.  That much is not fine. . . . .[EPA] imposed restrictions based on region-wide air quality modeling projections; those restrictions could require upwind States to reduce emissions by more than the amount of that contribution." Slip op. at 34.

The Court also found that the Transport Rule exceeded the EPA’s statutory authority because it issued a Federal Implementation Plan (FIP) implementing the “good neighbor rule” without permitting the states to propose their own State Implementation Plans (SIPs).  The Court found that the cooperative federalism scheme of the Clean Air Act provides that the EPA sets air quality standards and the states then have the opportunity, in the first instance, to propose plans to implement those standards in their own states.  By issuing the standards and the FIPs simultaneously, without giving the states the chance to come up with their own implementation plans, the EPA exceeded its statutory authorization.

Judge Rogers dissented.  She concluded that the Court’s ruling ignored statutory limits on its jurisdiction and considered arguments waived and/or never raised below, so that EPA was “blindsided” by arguments raised for the first time on appeal.  She concluded that these jurisdictional limits on the court’s review were fatal.

This ruling is a setback for the EPA’s implementation of the “good neighbor” rules, and further delays implementation of air quality standards for sulfur dioxide and nitrogen oxide.

Providing a win to competitive suppliers, the Pennsylvania Public Utility Commission (“PUC”) at its July 19 public meeting unanimously denied PPL’s request for a migration rider for default service customers.

Historically the Pennsylvania Public Utility Commission (PUC) has permitted natural gas distribution companies (NGDCs) to use flexible pricing or “flex” contract rates to attract or retain large customers who have other energy alternatives.  The reasoning has been that “half a loaf is better than none,” and that such revenues, which cover and exceed marginal cost, contribute positively to overall cost of service.  The result is a benefit to the large customer, the utility, and all customers generally. Moreover, in terms of retaining a customer, the argument in favor of the status quo is that other ratepayers benefit as they do not bear the revenue burden of stranded investment or a smaller revenue pot over which to apply costs.  The NGDCs have generally been able to recover from other ratepayers the difference between the “flex” rate and what would have otherwise been charged under an ordinary general tariff rate.

Solar developers are finding that Pennsylvania funding sources for solar development are drying up with no plans of replenishing the pool.  The dearth of available solar grants could not come at a worse time.  On May 17, 2012, the U.S. Commerce Department announced stiff tariffs on Chinese-made solar panels raising costs on most future solar projects.

The Pennsylvania Public Utility Commission (“PUC”) has clarified Gas & Hazardous Liquids Pipelines Act for Class 1 Entities.

The Pennsylvania Public Utility Commission (PUC) will hold a Summer Reliability Forum at 1:30 pm on Thursday, June 7, 2012.  The Forum will be held in Hearing Room 1 of the PUC’s Harrisburg offices.

The Pennsylvania Public Utility Commission will now decide whether migration riders will be permitted for electricity customers, at the same time it is moving forward with its Retail Markets Investigation and its notable efforts to make the electricity markets more competitive.

Under two new proposals to amend Pennsylvania’s Rules of Appellate Procedure lawyers will be writing shorter briefs with less risk of waiver.

The Pennsylvania Public Utility Commission (“PUC”) recently extended the Fuel Cost Recovery Surcharge for household goods carriers for an additional year, until April 18, 2013, to enable carriers to continue to recover increased diesel fuel costs.

Commonwealth Court Grants Preliminary Injunction Halting Zoning Limits in Act 13

Does a natural gas company that is not currently authorized to provide service in a  territory, but with  future plans to file for such authorization,  have standing to contest another gas company’s application to provide service in that same territory?  This issue was addressed in an Initial Decision by ALJ David A. Salapa, who answered it in the negative.  Application of Leatherstocking Gas Co., L.L.C. for Approval To Supply Natural Gas Service to the Public, A-2011-2275595 (Initial Decision, issued March 20, 2012).