Brunini and TempStaff in coordination with the Rankin County Chamber of Commerce presented a Brunch and Learn on November 2, 2016, where Brunini’s Chris Fontan was the featured speaker. His presentation covered Employment and HR Law in Mississippi and can be viewed here.
Mississippi Environmental Quality Permit Board Summary of Meeting Held October 11, 2016
The Mississippi Department of Environmental Quality Permit Board (Board) convened its regular monthly meeting at 9:00 a.m. on October 11, 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 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 POLLUTION CONTROL
No items were on the agenda
OFFICE OF GEOLOGY
In accordance with MDEQ staff recommendations, the Board approved the following surface mining bond releases and permits to combine:
Surface Mining Bond Release:
| Permittee | County | Permit | Staff Recommendation |
| P&P Sand and Gravel | Marion | P08-008AAA | Final 40% |
| Oddee Smith Construction, Inc. | Lincoln | P01-028 | Final 15% |
Mississippi Lignite Mining Company
The Board approved a partial release of additional acreage based on the completion of required reclamation. The applicant did not request or receive the release of any bond funds.
OTHER BUSINESS
Mr. Roy Furrh, MDEQ General Counsel advised the Board that Evidentiary Hearings have been scheduled for the November and December meeting pertaining to the following matters: issuance of a water quality certification and storm water coverage to Renaissance at Colony Park – Phase III (Costco), and issuance, modification and transfer of a water quality certification and other permits to Drying Facility Asset Holdings, LLC.
Following the Permit Board meeting, an evidentiary hearing was held to consider NPDES Permit No. MS0061751 regarding Mississippi Power Company, Kemper County.
The next Permit Board meeting will be held on November 8, 2016 at 9 a.m.
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Chris Fontan Presents to Headmasters for the Jackson Area Association of Independent Schools (JAAIS)
On October 27, 2016, Chris Fontan presented to the Headmasters for the Jackson Area Association of Independent Schools (JAAIS). During his presentation, he discussed the implications of the Fair Labor Standards Act (FLSA) and Overtime Regulations in Mississippi Educational Establishments. You may view the presentation here.
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Ron Yarbrough elected a Fellow of the American College of Construction Lawyers
Ron A. Yarbrough, of Brunini, Grantham, Grower & Hewes, has been elected a Fellow of the American College of Construction Lawyers. He is one of only three ACCL Fellows from Mississippi. The ACCL is a national organization of lawyers who have demonstrated skill, experience and high standards of professional and ethical conduct in the practice, or in the teaching, of construction law, and who are dedicated to excellence in the specialized practice of construction law.
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The Brunini Firm Welcomes R. Lane Bobo
Lane Bobo has joined Brunini, Grantham, Grower & Hewes, PLLC as an associate in the firm’s litigation department. Lane will concentrate his practice in medical malpractice defense, construction and general commercial litigation.
Lane is a recent magna cum laude graduate of the Mississippi College School of Law. Prior to attending law school, he received his Bachelors of Arts in History with a minor in Business Administration from the University of Mississippi.
Sam Kelly, Managing Partner of the Brunini firm said “We are excited to welcome Lane to the Firm and are confident that he will be a great asset to our team.”
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Mississippi Environmental Quality Permit Board Summary of Meeting Held September 13, 2016
Prepared By Brunini, Grantham, Grower & Hewes, PLLC
The Mississippi Department of Environmental Quality Permit Board (Board) convened its regular monthly meeting at 9:00 a.m. on September 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 August meeting and the non-controversial actions/ certifications by the staff since the August meeting.
Following a prepared agenda, items considered were as follows:
OFFICE OF POLLUTION CONTROL
Municipal & Private Facilities
Meridian POTW – Lauderdale County – MS0020117
The Board denied the request by one individual for a public hearing to be held in Meridian (rather than at the MDEQ offices). This individual was advised of the time date and location of this Permit Board hearing and did not attend.
Further, the Board approved the reissuance of the NPDES Permit. One letter of concern was submitted; however staff noted that the permit was drafted within the limits and meets all federal and state laws and regulations. No one in opposition was in attendance.
Agricultural Branch
The Board approved issuance of coverage under the AFO General Permit (MSG201887) and issuance of construction under the Storm Water Coverage (MSR107212) for Wegner Farms in Noxubee County. The application proposes four poultry houses and construction activity on seven acres of disturbed land. Staff stated that upon notification by the Applicant, three neighboring property owners submitted letters of concern; however, they did not attend 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 releases and permits to combine:
Surface Mining Bond Release:
| Permittee | County | Permit | Staff Recommendation |
| James Construction Group, LLC | Hinds | P14-005A | Initial 50% |
| Krystal Gravel, Inc. | Copiah | P13-002 | Additional 50% |
| Martin Meadowlands, LLC | Madison | P10-041AA | Initial 90% |
| Joe McGee Construction Co., Inc. | Clarke | P12-008 | Initial 90% |
| Joe McGee Construction Co., Inc. | Winston | P13-015 | Additional 50% |
| Memphis Stone & Gravel Company | DeSoto | P03-033 | Final 10% |
| Oddee Smith & Sons, Inc. | Lincoln | P95-091 | Final 10% |
| Talbot Bros. Constr. Co. and Talbot
Bros. Grading Co. |
Grenada | Pll-012 | Initial 10% |
Surface Mining Permit to Rescind:
| Permittee | County | Permit |
| Eutaw Construction Company, Inc. | Madison | P1S-007 |
OFFICE OF LAND AND WATER RESOURCES
The Board approved the Proposed 2016 General Permit for Mississippi River Valley Alluvial Aquifer (MRVA) Groundwater Withdrawals. The proposed 5-year permit is for irrigation, aquaculture and wildlife habitat enhancement. A hearing was held on April 21, 2016 with comments accepted until May 21, 2016. Modifications to the permit were made and incorporated per the comments.
OTHER BUSINESS
Mr. Roy Furrh, MDEQ General Counsel advised the Board Evidentiary Hearings have been scheduled for the next three permit Board Meetings and that each hearing should be completed in less than a day.
The next Permit Board meeting will be held on October 11, 2016 at 9 a.m.
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Over 20 States and 50 Business Groups File Suit Seeking to Block Enforcement of New Overtime Rule
With less than 75 days before the U.S. Department of Labor’s (DOL) New Overtime Rules are scheduled to go into full effect (click here for a summary), two separate federal court lawsuits were recently filed challenging the legality of DOL’s proposed changes. On September 21, 2016, a group of 21 states (lead by Texas and Nevada) sued the DOL, seeking to enjoin and ultimatelystrike the New Overtime Rule. On the same day, several nationwide business groups and trade organizations filed a second lawsuit against the DOL concerning the controversial New Overtime Rule, which is slated to take effect on December 1, 2016.
In the first lawsuit (Nevada et al. v. U.S. Department of Labor et al., No. 1:16-cv-407, Eastern District of Texas), the 21 states argue that the New Overtime Rule—which raised the minimum salary threshold required to qualify for the Fair Labor Standards Act’s (FLSA) “white collar” overtime exemption to $47,476 per year—is unconstitutional on numerous grounds. Specifically, the States argue that DOL overstepped its authority by imposing a salary requirement as the primary basis for determining exemption eligibility, instead of focusing on the bona fide job duties of an employee. Similarly, the States claim that the FLSA’s statutory language does not permit the inclusion of the New Rule’s “automatic increase” provision. Additionally, the States argue that by forcing them to comply with the New Rule, the Obama administration would unilaterally deplete individual states of their financial resources, in violation of the Tenth Amendment.
Joining Texas and Nevada in the lawsuit are Alabama, Arizona, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, New Mexico, Ohio, Oklahoma, South Carolina, Utah and Wisconsin. The States’ lawsuit seeks both declaratory and injunctive relief—meaning that the states are asking the Court to enter a temporary order blocking the New Rule’s scheduled enforcement on December 1st, as well as a permanent judgment declaring the New Overtime Rule illegal.
In the second lawsuit (Plano Chamber of Commerce, et al. v. U.S. Department of Labor, et. al., No. 4:16-cv-00732, Eastern District of Texas), the U.S. Chamber of Commerce, along with over 50 other national business organizations, claims that the DOL exceeded its statutory authority under federal law in enacting key provisions of the New Overtime Rule, including the minimum salary threshold and the automatic increase provision. Like the States, the Chamber of Commerce’s lawsuit seeks both declaratory and injunctive relief.
Both suits contend that, if implemented, the New Overtime Rule would require state governments, local municipalities, and private businesses alike to substantially increase their employment costs to the point that employers may ultimately be forced to either reduce services or lay off workers. “Once again, President Obama is trying to unilaterally rewrite the law,” Texas Attorney General Ken Paxton said in a statement. “And this time, it may lead to disastrous consequences for our economy. The numerous crippling federal regulations that the Obama administration has imposed on businesses in this country have been bad enough. But to pass a rule like this, all in service of a radical leftist political agenda, is inexcusable.”
“The DOL went too far in the new overtime regulation,” said Randy Johnson, senior vice president of Labor, Immigration, and Employee Benefits for the U.S. Chamber. “We have heard from our members, small businesses, nonprofits, and other employers that the salary threshold is going to result in significant new labor costs and cause many disruptions in how work gets done. Furthermore, the automatic escalator provision means that employers will have to go through their reclassification analysis every three years. In combination, the new overtime rule will result in salaried professional employees being converted to hourly wages, and it will reduce workplace flexibility, remote electronic access to work, and opportunities for career advancement.”
The DOL did not immediately comment on the lawsuit, though it previously expressed confidence in the legality of the New Rule.
Experts predicted that the New Overtime Rule would face some type of legal challenge before its implementation at the end of this year. However, not everyone agrees that the DOL exceeded its authority in enacting the regulations. Many feel these challenges to the legality of New Overtime Rule are long-shots at best—with most feeling that the challenges to the automatic increase provision have the greatest likelihood of success.
While it is possible the federal court could enter an order staying the implementation of the New Overtime Rule, at this time, employers are best served to continue preparing as if the New Rule will go into effect on December 1st.
Jones, Sclafani and Drinkwater Obtain Judgment and Dismissal
On August 18, 2016, Trey Jones, Joseph Sclafani and William Drinkwater obtained a judgment and dismissal for one of the firm’s bank clients in an important case regarding a bank’s duty to protect noncustomers from the wrongdoing of its customers. After being injured in an automobile accident, the plaintiff hired a law firm to pursue her claims arising from the accident. Subsequently, the plaintiff filed for bankruptcy. During the pendency of the bankruptcy, the law firm the plaintiff hired to pursue her personal injury claim obtained a $500,000 settlement. The law firm then hired a separate bankruptcy attorney to obtain bankruptcy court approval of the settlement and payment of the law firm’s legal fees. After receiving the $500,000, the bankruptcy attorney deposited the funds into his personal account at the bank. The bankruptcy attorney paid the law firm its legal fees but stole the money owed to the plaintiff.
Following the bankruptcy attorney’s theft, the plaintiff sued the law firm she hired to litigate her personal injury claim for malpractice and negligence, among other claims, for allowing the bankruptcy attorney’s conversion. As part of the plaintiff’s settlement of her claims against the law firm, the law firm assigned any causes of action it may have against any financial institution relating to the conversion. The plaintiff, assignee of the law firm, then sued the bank for negligence and conversion, arguing that a bank that has notice or knowledge of a customer’s misappropriation of funds from the customer’s trust account may be held liable to the non-customer whose funds were misappropriated.
Resolving a complicated issue not yet addressed by the Mississippi Supreme Court, the U.S. District Court held that plaintiff, as successor in interest to the law firm, did not have standing to assert a conversion claim because the funds converted never belonged to the law firm. Likewise, the court held, as a matter of law, that the bank owed no duty to plaintiff, as successor in interest to the law firm, to protect it from its customer’s misappropriation of funds that belonged to the law firm’s client. Accordingly, the court dismissed all of plaintiff’s claims with prejudice.
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Chris Fontan Presents to Mississippi Corporate Counsel Association
Chris Fontan spoke at the August meeting of the Mississippi Corporate Counsel Association on August 24, 2016. His presentation provided attendees with CLE credit and covered Hot Issues in Employment Law in Mississippi in 2016. The presentation may be viewed here.
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Mississippi Environmental Quality Permit Board Summary of Meeting Held August 9, 2016
The Mississippi Department of Environmental Quality Permit Board (Board) convened its regular monthly meeting at 9:00 a.m. on August 9, 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 Regular July meeting. Also, the Board approved non-controversial actions/certifications by the staff since the July meeting and incorporated the reports of these actions into the July minutes.
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 releases and rescinded the following surface mining permits:
Surface Mining Bond Releases
| Permittee | County | Permit | Staff Recommendation |
| Eutaw Construction Company, Inc. | Pontotoc | P12-017 | Final 30% release |
| Eutaw Construction Company, Inc. | Rankin | P12-020 | Final 50% release |
| Eutaw Construction Company, Inc. | Clay | P13-022 | Additional 30% release |
| Eutaw Construction Company, Inc. | Madison | P15-007 | Initial 40% release |
| Jim Grotkowski | Harrison | P98-055T | Final 50% release |
| Joe McGee Construction Co., Inc. | Madison | P11-024 | No release |
| C. Steve Lee | Hancock | P07-012 | Final 20% release |
Surface Mining Permits to Rescind
| Permittee | County | Permit | Staff Recommendation |
| South Byram Properties, LLC | Hinds | P06-009 | Rescind Permit |
| W.P. Properties, LLC | Hinds | P03-025T | Rescind Permit |
OFFICE OF POLLUTION CONTROL
The Board approved a Modification of Section 401 Water Quality Certification (No. WQC 2012071) for Drying Facility Assets Holding, LLC, Picayune Frac Plant, located in Pearl River County, MS. The modification will alter permittee’s mitigation plan to allow for off-site mitigation, rather than on-site. MDEQ staff took no position on whether the Board should grant the proposed modification. The Modification was approved on the condition that the wetlands designated for enhancement and restoration are left within the perpetual conservation easement.
OTHER BUSINESS
Mr. Roy Furrh, MDEQ General Counsel, advised the Board that due to legislation, passed in the 2016 Regular Session of the Mississippi Legislature, that places fees collected by state agencies into the state’s general fund, the Office of the Attorney General would no longer be able to provide hearing officers to MDEQ. Mr. Furrh stated that a list of former assistant attorneys general and private practitioners was being compiled to serve as hearing officers.
The next Permit Board meeting will be held on September 13, 2016, at 9 a.m.