Brunini Law

Brunini Law

Brunini Repeats as Mississippi Firm of the Year

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Benchmark Litigation has named the Brunini firm Mississippi’s only “Firm of the Year” for 2017.  This is the second consecutive year for Brunini to receive this honor.  Patrick McDowell accepted the award for the firm at the Benchmark Litigation U.S. Awards Dinner in New York City on February 16.

Benchmark Litigation focuses exclusively on litigation in the United States.  Award winners are determined through extensive interviews of the nation’s leading private practice lawyers and in-house counsel to identify the very best litigators and law firms in each jurisdiction.  The Brunini firm is proud to continue to be recognized among the country’s most distinguished law firms.

 

Mississippi Environmental Quality Permit Board Summary of Meeting Held February 14, 2017

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The Mississippi Environmental Quality Permit Board (“Board”) convened its regular monthly meeting at 9:00 a.m. on February 14, 2017, at the offices of the Mississippi Department of Environmental Quality in Jackson.  Mr. Mike Bograd, RPG, chaired the meeting.

The Board approved minutes from the January meeting and the non-controversial actions/ certifications completed by the staff since the January meeting.

Following a prepared agenda, items considered were as follows:

OFFICE OF POLLUTION CONTROL – No Items

OFFICE OF GEOLOGY

In accordance with MDEQ staff recommendations, the Board approved the following surface mining bond releases:

Surface Mining Bond Releases:

 

Permittee County Permit Staff Recommendation
All South Construction Company Neshoba P99-071A Initial 20%
Baldwin Sand & Gravel Panola P12-019 Initial 10%
W.E. Blain & Sons, Inc. Scott P91-046T Initial 50%
W.E. Blain & Sons, Inc. Scott P96-013 Initial 50%
Preston Dobbs Truck Service Monroe P10-010 Initial 90%
Tanner Construction Co., Inc. Jefferson Davis P96-016T No Additional
Tanner Construction Co., Inc. Lawrence P07-005A No Additional
Tanner Construction Co., Inc. Perry P08-019 No Additional
Walters Development, LLC* Jones P07-030 Additional 20%
*Note – a representative for Walters Development spoke on behalf of the company regarding the Bond Release and a separate permit application submitted to MDEQ.

Surface Mining Transfer:

The Board approved the permit transfer from Boyles Roofing and Sheet Metal, Inc., Permit P92-045T, to M&O Surface, Inc.

Surface Mining Name Change:

The Board approved a name change from Blain and Sons, Inc. to Blain Sand & Gravel, Permit P96-042AA.

OTHER BUSINESS

Renaissance at Colony Park, LLC, Madison County, Mississippi – Staff presented and the Board approved the proposed Findings of Fact and Conclusions of Law for consideration regarding the issuance of a Clean Water Act Section 401 Water Quality Certification (No. WQC 2015041) and Coverage under the Large Construction Storm Water General NPDES Permit (No. MSR 107191) to Renaissance at Colony Park, LLC, Madison County, Mississippi.

Mr. Roy Furrh, MDEQ Legal Counsel reminded the Board that the Evidentiary Hearing for Drying Facility Asset Holdings, LLC, has been scheduled for the March meeting.

Staff presented and Board approved MDEQ’s Motion to Dismiss an evidentiary hearing request received from Austin D. (Dan) Check for consideration regarding the reissuance of Water Pollution Control Permit to Discharge Wastewater in Accordance with the National Pollutant Discharge Elimination System, Permit No. MS0020117, to the City of Meridian Publicly Owned Treatment Works, located in Lauderdale County, MS.

The next Permit Board meeting will be held on March 14, 2017, at 9 a.m.

 

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Kaufman Elected President of Mississippi Chapter of the American Board of Trial Advocates

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David Kaufman was elected President of the Mississippi Chapter of the American Board of Trial Advocates at its annual meeting held in Jackson on February 11, 2017. ABOTA is an invitation-only national association of experienced trial lawyers and judges dedicated to the preservation and promotion of the Seventh Amendment to the U.S. Constitution, which guarantees the right to civil jury trials. ABOTA’s primary goal is to educate the American public about the history and value of the right to trial by jury and is dedicated to elevating the standards of integrity, honor and courtesy in the legal profession. Founded in 1958, ABOTA boasts a membership of more than 7,600 experienced attorneys representing both the plaintiff and defense bars in civil cases and who are spread among 95 chapters located in all 50 states and the District of Columbia.

Brunini’s Kaufman has been recognized by Best Lawyers in America® for Bet-the-Company Litigation, Business Litigation, Securities Litigation, and Personal Injury Litigation. Chambers USA has included him among America’s Leading Lawyers in Business Litigation, and Mid-South Super Lawyers has named Kaufman one of its top 50 lawyers in Mississippi for business litigation. Benchmark Litigation has named him a Local Litigation Star, and The Mississippi Business Journal recognized Kaufman as a Leader in the Law for 2011. He is also a Fellow of the American College of Trial Lawyers and an Associate and former National Director of the American Board of Trial Advocates.

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Mississippi Environmental Quality Permit Board Summary of Meeting Held January 11, 2017

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The Mississippi Environmental Quality Permit Board (“Board”) convened its regular monthly meeting at 9:00 a.m. on January 11, 2017, at the offices of the Mississippi Department of Environmental Quality in Jackson.  Mr. Mike Bograd, RPG, chaired the meeting.

The Board approved minutes from the December meeting and the non-controversial actions/ certifications completed by the staff since the December meeting.

Following a prepared agenda, items considered were as follows:

OFFICE OF POLLUTION CONTROL

The Board approved issuance of coverage under the AFO General Permit (MSG201911) and issuance of construction under the Storm Water Coverage (MSR107315) for A’s Farm, LLC, in Walthall County.  The application proposes ten poultry houses and construction activity on sixteen acres of disturbed land.  Staff stated that upon notification by the Applicant, one neighboring property owner submitted a letter of objection and a local church submitted a signed petition citing issues including health concerns and property values.  No one in opposition was present at the meeting.  Because the facility’s application is complete and the Applicant is in compliance, MDEQ staff recommended issuance of the Permit.

OFFICE OF GEOLOGY

In accordance with MDEQ staff recommendations, the Board approved the following surface mining bond release:

Surface Mining Bond Release:

 

Permittee County Permit Staff Recommendation
Bellew Sand and Gravel Forrest P97-026 Initial 90%
Boydstun Lumber Company Winston P87-021 Initial 90%
Boydstun Lumber Company Winston P94-027A Initial 50%
Green Brothers Gravel Company, Inc. Copiah P09-005A Final 20%
Golden Triangle Sand and Gravel Lowndes P89-013T Initial 90%
Golden Triangle Sand and Gravel Lowndes P98-041 Initial 90%
Hammett Gravel Company, Inc. Yazoo P06-029A Additional 20%
Joe McGee Construction Company, Inc. Madison P11-018A Initial 80%
Joe McGee Construction Company, Inc. DeSoto P13-003 Initial 10%
Birdsong Construction Company, Inc. Hinds P96-066 Initial 25%
Ralph Weldy Forrest P94-140A Initial 90%

Surface Mining Transfer of Acreage:

The Board approved the transfer of 120 acres in Holmes County from the adjacent mine owned by Baldwin Sand & Gravel (“Baldwin”) to Hammett Gravel Company, Permit P10-020AAA (“Hammett”) increasing Hammett’s permitted acreage from 83.5 acres to 203.5 acres and reducing Baldwin’s permitted acreage from 290 acres to 170 acres.

OTHER BUSINESS

 Staff presented and Board approved the proposed Findings of Fact and Conclusions of Law for consideration regarding the issuance and modification of Water Pollution Control Permit to Discharge Wastewater in Accordance with the National Pollutant Discharge Elimination System Permit No. MS0061751 to Mississippi Power Company, Kemper IGCC Facility (Plant Ratcliffe), Located in Kemper County, MS.

Mr. Roy Furrh, MDEQ Legal Counsel reminded the Permit Board members that they need to file their annual ethics statement.

Mr. Roy Furrh, thanked the Board for completing the forms recently required by the Department of Interior – Office of Surface Mining and Reclamation.

Mr. Furrh also reminded the Board that the Evidentiary Hearing for Drying Facility Asset Holdings, LLC, has been scheduled for the March meeting.

Mr. Furrh briefly discussed the suit between West Rankin Utility Authority and the City of Jackson and stated that oral arguments are today before the Rankin County Chancery Court.

The next Permit Board meeting will be held on February 14, 2017, at 9 a.m.

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Mississippi Environmental Quality Permit Board Summary of Meeting Held December 13, 2016

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The Mississippi Environmental Quality Permit Board (“Board”) convened its regular monthly meeting at 9:00 a.m. on December 13, 2016, at the offices of the Mississippi Department of Environmental Quality in Jackson.  Mr. Mike Bograd, RPG, chaired the meeting.

The Board approved minutes from the November meeting and the non-controversial actions/ certifications completed by the staff since the November meeting.

Following a prepared agenda, items considered were as follows:

OFFICE OF POLLUTION CONTROL

The Board approved issuance of coverage under the AFO General Permit (MSG201908) and issuance of construction under the Storm Water Coverage (MSR107275) for Tommie L. Landrum II Poultry in Jones County.  The application proposes six poultry houses and construction activity on twelve acres of disturbed land.  Staff stated that upon notification by the Applicant, eleven neighboring property owners submitted letters of objection citing issues including health concerns, the presence of gopher tortoises, and a stream running through the property.  Two individuals spoke in opposition and one read a letter from a third individual, who was unable to attend the meeting.  Board members posed questions to those in opposition as well as staff concerning notification issues; buffer area; doctor’s letter confirming health problems; disposal of litter and dead birds.  Because the facility’s application is complete and the Applicant is in compliance, MDEQ staff recommended issuance of the Permit.  After the vote, Mr. Roy Furrh, MDEQ General Counsel, advised those in opposition that they may request an Evidentiary Hearing on the matter.

OFFICE OF GEOLOGY

In accordance with MDEQ staff recommendations, the Board approved the following surface mining bond release:

Surface Mining Bond Release:

 

Permittee County Permit Staff Recommendation
T. L. Wallace Construction, Inc. Hinds PIS-017 Initial 90%
Baldwin Sand & Gravel Monroe P92-098AA Final 60%
T. L. Wallace Construction, Inc. Harrison P03-030 Initial 90%
T. L. Wallace Construction, Inc. Harrison P02-018 Final 10%
T. L. Wallace Construction, Inc. Marion P08-013 Final 10%
T. L. Wallace Construction, Inc. Marion P08-018 Final 10%
T. L. Wallace Construction, Inc. Marion P08-021 Final 10%

OTHER BUSINESS

Mr. Roy Furrh, MDEQ General Counsel, thanked the Board for completing the forms recently required by the Department of Interior – Office of Surface Mining and Reclamation

Mr. Furrh also reminded the Board that the Evidentiary Hearing for Drying Facility Asset Holdings, LLC has been scheduled for the March meeting.

The next Permit Board meeting will be held on January 10, 2017 at 9 a.m.

 

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“Paid Sick Leave” for Employees of Certain Federal Contractors & Subcontractors

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By: Chris Fontan & Kyle Williams

In October 2016, the U.S. Department of Labor (“DOL”) published regulations implementing Executive Order 13706 (“the Order”).  Initially signed in September 2015, the Order—entitled Establishing Paid Sick Leave for Federal Contractors—requires some federal contractors and subcontractors to provide certain employees with up to seven (7) days of paid sick leave annually.  Historically, the federal government has not established regulations (covering either private employers or federal contractors) mandating the provision of paid leave time for employees.   While it only impacts federal contractors and subcontractors, the DOL’s regulations will drastically alter this historical policy, as the DOL estimates that anywhere from 600,000 – 1.2 million employees will be impacted by the Final Rule.

Contracts Subject to the Order & Regulations

According to the DOL, the coverage of contracts and employees under the Order is “nearly identical” to coverage under the regulations mandating a minimum wage for certain federal contractors.  (The required minimum wage rate for covered federal contractors is adjusted each year by the DOL.  For 2017, the required minimum wage for covered federal contracts is $10.20.)

The Order and its regulations apply to four (4) types of contracts:

  • Procurement contracts for construction covered by the Davis-Bacon Act;
  • Service contracts covered by the Service Contract Act;
  • Concessions contracts; and
  • Contracts in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.

Of these covered contracts, the Order applies to (1) new contracts, (2) replacements for expiring contracts, and (3) subcontracts of any covered contract issued on or after January 1, 2017.  For the Order to apply, the new/replacement contract must include a clause setting forth the Order’s requirements.  If the contract does include this required clause, the governmental agency can withhold funds due under the contract if a contractor or subcontractor fails to abide by the Order’s requirements. (Additionally, contractors are required to include a clause outlining the Order’s requirements in all new subcontracts issue.)

Employees Covered by the Order & Regulations

The Order only applies to individuals engaged in performing work directly related to the subject matter of the contract, or “in connection with” a covered contract.  Importantly, employees that spend less than twenty percent (20%) of their working hours performing work in connection with a contract (such as providing administrative or other support services) are not covered by the Order.

Leave Required Under the Order & Regulations

Under the Order and its regulations, there are a couple of methods by which covered contractors can grant and track the required paid sick leave.  Employees that are covered are entitled to one hour of paid sick leave for every thirty (30) hours worked (actually worked – not total hours paid) on or in connection with a covered contract.  As an alternative, contractors have the option to provide covered employees with at least fifty-six (56) hours of paid sick leave at the beginning of each accrual year, rather than allowing employees to accrue leave based on hours worked.   Under this option, contractors who already provide employees with paid sick leave (for the same types of absences described in the Order) can take credit for the amount of leave provided—they are only required to provide employees with the difference between the amount already provided and the mandated fifty-six (56) hours.

The Order & its regulations set forth rules concerning a covered employee’s ability to “carry over” any accrued, but unused paid sick leave from one year to the next.  Also, if an employee is rehired by the same contractor within 12 months of a job separation, the contractor must reinstate that employee’s accrued, unused paid sick leave balance (unless the employee is paid for that leave at the time of separation).  Covered contractors are also required to notify covered employees of the amount of paid sick leave they have accrued—either at the end of each pay period or each month, whichever interval is shorter.  This notification must be provided in writing.

Covered Absences under the Order

The Order requires contractors to allow covered employees to use their paid sick leave (in increments as small as one hour) for any absence resulting from:

  • Physical or mental illness, injury, or medical condition of the employee;
  • Obtaining diagnosis, care, or preventive care from a health care provider by the employee;
  • Caring for the employee’s child, parent, spouse, domestic partner, or “any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship”; or
  • Domestic violence, sexual assault, or stalking.

When employees use their paid sick leave, contractors must provide them with the same regular pay and benefits they would have received if they had not used the leave, except that employees do not earn additional paid sick leave during their absence.

Under the Order, an employee is required to request paid sick leave “as soon as is practicable,” either orally or in writing.  If a contractor denies an employee’s request, it must communicate the denial in writing with an explanation as to why the request was denied. A contractor can only require an employee to document or verify absences of three or more consecutive days, and the contractor must inform the employee of the requirement to provide documentation before he or she returns to work. If the absence is healthcare-related, the contractor can require the certification to be made by a healthcare provider. If the absence is related to domestic violence, sexual assault, or stalking, the documentation or verification can come directly from the employee.

If you feel that your organization may be impacted by these new regulations, you should contact your labor & employment counsel for implementation advice.

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EPA Signals Denial of Proposed Changes to Point of Obligation under the Renewable Fuel Standard

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By: L. Kyle Williams

Over the past year, several petroleum distributors, and other entities, have advocated for moving the point of obligation under the Renewable Fuel Standard (“RFS”), seeking to remove this responsibility from refiners and importers, and place it on “position holders” or those parties that blend renewable fuel into transportation fuel.

The RFS promotes increased blending of ethanol, biodiesel and other renewable fuels. Obligated parties—currently, refiners and importers—bear the responsibility of complying with annual renewable fuel volume obligations (“RVOs”) established by the U.S. Environmental Protection Agency (“EPA”). These parties ensure the requisite amount of renewable fuels gets blended into the fuel pool, to offset petroleum fuel production and, in turn, they receive Renewable Identification Numbers (“RINs”) for blending, which are credited toward fulfilling their RVO. Obligated parties can either blend the fuels, earning the corresponding RINs, or they can purchase them.

Valero Energy Corp. filed a petition for reconsideration with the EPA, asking it to change the definition of “obligated party”, as provided by the RFS to no longer include refiners or importers, but rather, “the entity that holds title to the gasoline or diesel fuel, immediately prior to transfer from the truck loading terminal or bulk terminal to a retail outlet, wholesale purchaser-consumer or ultimate consumer.” In addition, CVR Energy and the American Fuel and Petrochemical Manufacturers filed separate but similar requests with the EPA. Proponents of moving the point of obligation argue the current system is fraught with inefficiencies, and larger retailers have a competitive advantage by benefitting from profitable RIN sales. In addition, Valero claimed changing the point of obligation will incentivize the growth of renewable fuels, while the current system has the effect of limiting renewable fuel use. In its petition to the EPA, Valero further claimed the existing point of obligation “harm[s] renewable fuel producers, independent refiners, retailers and U.S. consumers.”

On November 10, 2016, the EPA announced that it proposed to deny all requests to change the point of obligation but will take public comment on such proposals to ensure it will “receive input from the wide variety of stakeholders that could be affected.” In its Proposed Denial, the EPA stated, “We are therefore opening a docket to formally receive comments on the petitions submitted to EPA to change the point of obligation in the RFS program from the refiners and importers of gasoline and diesel fuel to other parties, such as blenders or position holders of these fuels.” The comment period will last sixty days, beginning November 10, 2016. The EPA’s announcement comes after many trade associations, retailers and other entities discouraged any changes to the point of obligation, instead, advocating for the continuation of the current system. These parties include the National Association of Truckstop Operators, the American Petroleum Institute, and the National Association of Convenience Stores. According to these organizations, any changes in the point of obligation would harm consumers by negatively impacting the U.S. fuel market and would raise fuel prices.

The EPA has put forth a comprehensive report detailing its rationale for proposing to deny the requests. Its main arguments in favor of maintaining the current regime include: (1) the current program structure appears to be working to achieve the goals of the RFS program; (2) changing the point of obligation is not expected to result in the increased production, distribution and use of renewable fuels; (3) changing the point of obligation would significantly increase the complexity of the RFS program; and (4) changing the point of obligation could cause significant market disruption. While it is not readily known how the effects of the comment period or the recent U.S. Presidential election will impact this requested change, the EPA’s decision is of great importance to the industry and should be closely watched by industry professionals.

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Mississippi Environmental Quality Permit Board Summary of Meeting Held November 8, 2016

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The Mississippi Environmental Quality Permit Board (Board) convened its regular monthly meeting at 9:00 a.m. on November 8, 2016 at the offices of the Mississippi Department of Environmental Quality in Jackson.  Mr. Mike Bograd, RPG, chaired the meeting.

The Board approved minutes from the September meeting and the non-controversial actions/ certifications by the staff since the September meeting.

Following a prepared agenda, items considered were as follows:

OFFICE OF GEOLOGY

In accordance with MDEQ staff recommendations, the Board approved the following surface mining bond release:

Surface Mining Bond Release:

 

Permittee County Permit Staff Recommendation
Walters Development, LLC Jones P09-015 50% Release

Liberty Fuels Coal Mine Renewal:

The Board approved the renewal of Liberty Fuels Coal Mine Permit Number MS-003 in Kemper County.  The Application was submitted for the first renewal of the permit.  There were no written comments in opposition to the Application. Further, a public hearing was held, but there was no opposition at the hearing.

Krystal Gravel, Inc. – Surface Mining Application:

The Board approved Krystal Gravel, Inc.’s Surface Mining Application for a 10.78 acre sand and gravel surface mine.  Per regulations, Notices were sent to landowners within 500 feet.  MDEQ was notified by a landowner (Ms. Montora McDonald) that she did not receive the Notice.  A Notice was sent to Ms. McDonald and the comment period was extended accordingly. A public hearing was held and one person spoke in opposition, citing dust and noise.  Ms. McDonald appeared at the Permit Board Meeting in opposition.  She asked questions regarding proximity of the mine to her property and how long it would take to reclaim the land once mining operations ceased; also, she cited issues such as dust, mud and hazards.  Staff addressed Ms. McDonald’s questions and issues, and then stated that the Application is complete, has met all requirements, and the Applicant is in compliance.  Based on this, MDEQ staff recommended issuance of the Permit.

OTHER BUSINESS

Mr. Roy Furrh, MDEQ General Counsel, advised the Board that key employees at MDEQ had recently filed forms with the Department of Interior – Office of Surface Mining and Reclamation and that members of the Permit Board would also have to complete similar forms.

Mr. Furrh advised the Board that the Evidentiary Hearing for Drying Facility Asset Holdings, LLC that had been scheduled for the December meeting has been postponed until the March meeting.

Following the Permit Board meeting, an evidentiary hearing was held regarding Renaissance at Colony Park, LLC, Madison County, Mississippi, regarding the issuance of Section 401 Water Quality Certification No. WQC 2015041 and Large Construction Storm Water General NPDES Permit Coverage No. MSR 107191.

The next Permit Board meeting will be held on December 13, 2016 at 9 a.m.

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United States Supreme Court denies certiorari review of Fifth Circuit ruling affirming summary judgment for clients

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On October 31, 2016, the United States Supreme Court denied certiorari review of the United States Court of Appeals for the Fifth Circuit’s decision affirming the United States District Court of Louisiana’s award of summary judgment to the firm’s clients in a civil RICO action accusing the clients and others of alleged racketeering activities in connection with the awarding of debris removal and clean-up contract work in Louisiana following Hurricane Katrina.  The clients were represented by David Kaufman, Patrick McDowell (briefed), and Benje Bailey.

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2016 Mid-South Super Lawyers

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Attorneys from Brunini were recently selected as Mid-South Super Lawyers 2016 and Mid-South Rising Stars 2016.

Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.

Brunini’s R. David Kaufman and John E. Wade were also listed in the Top 50 Mississippi Lawyers.

Mid-South Super Lawyers

 Matt Allen-Business Litigation

Sheldon G. Alston- General Litigation

Leonard A. Blackwell, II-Environmental

Stephen J. Carmody- Employment & Labor

J. Gordon Flowers- Business Litigation

Lynne K. Green-Estate Planning and Probate

William Trey Jones, III- Business Litigation

R. David Kaufman- Business Litigation

Samuel C. Kelly- Construction Litigation

James A. McCullough, II- Bankrutpcy Business

M. Patrick McDowell- Business Litigation

John E. Milner- Environmental

Joseph A. Sclafani- Appellate

Watts C. Ueltschey- Energy & Resources

Leonard D. Van Slyke, Jr.- Tax

John E. Wade- Personal Injury Medical Malpractice: Defense

Eugene R. Wasson- Environmental

Ron A. Yarbrough- Construction Litigation

Mid-South Super Lawyers – Rising Stars

Cody C. Bailey- Construction Litigation

William Drinkwater- Bankruptcy: Consumer

Christopher R. Fontan- Employment & Labor

Karen Howell- IP

Lauren O. Lawhorn- Employment & Labor

Taylor B. McNeel- Business Litigation

Lane W. Staines- Health Care

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