Brunini Law

Mississippi Environmental Quality Permit Board Summary of Meeting Held August 11, 2015

August 11, 2015 by Brunini Law

Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Environmental Practice Group of the Brunini Law Firm publishes a summary of the proceedings of each monthly meeting of the Mississippi Environmental Quality Permit Board and of the Mississippi Commission on Environmental Quality. We strive to provide, in a succinct newsletter format, the key points addressed in each meeting that will be of interest to the regulated community in Mississippi.

If you have any questions concerning the content of a newsletter it would like further information about the matters addressed in a newsletter, please contact John Milner, the Brunini Firm Environmental Practice Group leader, at jmilner@brunini.com or (601) 960-6842.

Meeting Summary

The Mississippi Department of Environmental Quality Permit Board (Board) convened its regular monthly meeting at 9:00 a.m. on August 11, 2015 at the offices of the Mississippi Department of Environmental Quality in Jackson. Mr. David Snodgrass, RPG chaired the meeting. The Board approved minutes from the July meeting and all non-controversial actions/certifications by the staff since the July meeting. Following a prepared agenda, items considered were as follows:

OFFICE OF GEOLOGY

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

Surface Mining Bond Releases:

Permittee	County	Permit	Staff Recommendation
Ellis Construction Company, Inc.	Lowndes	P06-016	Initial 90% release
Ellis Construction Company, Inc.	Lowndes	P01-025	Initial 90% release
Ellis Construction Company, Inc.	Lowndes	P91-007	Initial 90% release
Ellis Construction Company, Inc.	Lowndes	P93-117	Initial 90% release
Neely Trucking & Excavating	Rankin	P10-017A	Initial 50% release
Parker Sand and Gravel	Lowndes	P00-031	Final 30% release
Memphis Stone & Gravel Company	DeSoto	P80-026	Final 20% release
Memphis Stone & Gravel Company	DeSoto	P85-004	Final 39% release
P & P Sand and Gravel	Marion	P08-008AAA	Additional 50% release
Eutaw Construction Company, Inc.	DeSoto	P13-020	Initial 90% release
Eutaw Construction Company, Inc.	DeSoto	P13-021	Initial 20% release

The staff also moved and the Board approved a motion to delay approval of any bond release for Mississippi Rocks, Inc. P07-020 in Marion County to allow additional time for staff review.

OFFICE OF POLLUTION CONTROL

Agricultural Branch

The Board approved the Modification of Coverage of the CAFO Multi-Media General Permit (MSG220032) for Prestage Farms, Inc., Number 12 in Chickasaw County. The modified facility would include 3 additional sow barns, requiring disturbance of an additional 3 acres. Staff stated that upon notification by the Applicant, a contingent property owner submitted a letter that noted odors and disturbance of Indian artifacts as issues of concern. However, this landowner did not attend the Board meeting.

MDEQ staff noted that the Application is complete and that all required buffer zone distances between the modified facility and neighboring property and dwellings are within the technical requirements of MDEQ Regulations. MDEQ staff performed a Site Inspection of the proposed location in July 2015. Because the applicant is in compliance with all requirements, MDEQ recommended modification of the permit. After discussion, the Board approved the modification.

Solid Waste Management and Mining Branch

The Board approved Modification of the Individual NPDES Stormwater Permit (MSS058149) for the City of Louisville Solid Waste Landfill in Winston County. The modified permit will include 1 additional stormwater outfall, for a total of 4 outfalls. The additional outfall will discharge non-contact stormwater to the Little Noxubee River, which is not listed on the State’s Section 303(d) List of Impaired Waters.

MDEQ staff noted that a public hearing on the modified permit was held on July 30, 2015, and no comments were received. Noting that the application is complete and meets all requirements, MDEQ staff recommended approval of the modified permit. After discussion, the Board approved the modification.

OTHER BUSINESS

Roy Furrh, MDEQ General Council, reminded attendees of the evidentiary hearing to consider issuance of the West Rankin Utility Authority NPDES Permit No. MS0061743. The hearing is scheduled for September 1-2, 2015 beginning at 9 a.m. Mr. Furrh indicated that 10 to 15 witnesses are expected to testify at the hearing.

The next Permit Board meeting will be held on September 8, 2015 at 9 a.m.

This Newsletter is a publication of the Environmental Department of the law firm of Brunini, Grantham, Grower & Hewes located in Jackson, Mississippi. This Newsletter is not designed or intended to provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.

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BRUNINI’S JOHN MILNER ELECTED AS VICE CHAIR OF THE AMERICAN BAR ASSOCIATION’S SECTION OF ENVIRONMENT, ENERGY AND RESOURCES

August 2, 2015 by Brunini Law

John Milner of Brunini, Grantham, Grower & Hewes, PLLC was recently elected as the Vice Chair of the American Bar Association’s Section of Environment, Energy and Resources.

“We are proud of John’s election and know that he will provide great leadership to the Section,” said Sam Kelly, chairman of Brunini’s Board of Directors. “We are proud of the leadership John provides to the industry on the federal, state and local level and will now provide to the American Bar Association’s Section of Environment, Energy and Resources”.

Milner concentrates his practice primarily in environmental law and litigation. He represents business and industrial clients in environmental permitting and enforcement actions, natural resource damage assessments and regulation promulgation before the U. S. Environmental Protection Agency and the Mississippi Department of Environmental Quality and other federal and state agencies, as well as in environmental litigation in state and federal courts in Mississippi and other southeastern states. His environmental practice also concerns real estate due diligence and contractual matters in the southeastern region states. John also represents clients in lobbying and monitoring activities concerning environmental and other business and industry issues before the Mississippi Legislature.

Prior to being elected as Vice Chair, John served as the Publications Officer for the Section of Energy, Environment and Resources from 2014-2015. He started his three-year term on August 2, 2015. He will serve one year as Vice Chair, one year as Chair-Elect followed by a year serving as Chairman of the Section.

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John E. Milner

U.S. EEOC Rules Workplace Discrimination Based on “Sexual Orientation” Already Illegal Under Federal Law

July 24, 2015 by Brunini Law

Continuing a whirlwind month for both the federal government and U.S. employers, on July 16, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) ruled that workplace discrimination based on an employee’s “sexual orientation” is already illegal under Title VII of the Civil Rights Act of 1964. The EEOC’s groundbreaking decision is the agency’s first administrative ruling declaring that employment discrimination against gay, lesbian, and bisexual workers is unlawful.

In a split 3-2 vote, the EEOC concluded that Title VII forbids sexual orientation discrimination on the job, because it’s a form of discrimination based on “sex or gender,” which the Act prohibits. In a seventeen page opinion (link here), the EEOC argues that when an employer disapproves of a lesbian employee’s orientation, it is really objecting to the fact that a woman is romantically attracted to another woman. According to the EEOC, such an objection is based on a “stereotyped” view of that employee’s gender role. The EEOC also presented a secondary theory, arguing that sexual orientation discrimination is “associational discrimination on the basis of sex.”

The EEOC’s analysis in this case is important. Three years earlier, the agency used a similar “sex stereotyping” analysis in ruling that discrimination based on an employee’s “gender identity” is also sex discrimination under Title VII. Since that time, many federal courts—including the Fifth Circuit Court of Appeals—has accepted this ruling in extending Title VII protections to transgender employees.

For now, the EEOC’s decision applies only to EEOC claims lodged by federal employees, as sexual orientation protection under Title VII for private employees has been generally rejected by the federal courts. However, even private employers should keep two important caveats in mind. First, the EEOC handles the initial investigation of EEOC Charges of Discrimination filed by private employees against private employers. Following this ruling, all charges of sexual orientation discrimination will be considered illegal at the EEOC level—something that may empower gay and lesbian private employees to lodge discrimination complaints. Second, until the U.S. Supreme Court offers its opinion, it is possible that lower federal courts may choose to accept the EEOC’s reading of Title VII—especially following the EEOC’s recent success with its position on sexual identity.

Employers should carefully review their current employment policies for areas this ruling could potentially impact, such as Employee Handbooks and Company EEO Statements.

This Newsletter is a publication of the Labor and Employment Department of the law firm of Brunini, Grantham, Grower & Hewes located in Jackson, Mississippi. This Newsletter is not designed or intended to provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.

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Mississippi Environmental Quality Permit Board Summary of Meeting Held July 14, 2015

July 20, 2015 by Brunini Law

Prepared By Brunini, Grantham, Grower & Hewes, PLLC

Meeting Summary

The Mississippi Department of Environmental Quality Permit Board (Board) convened its regular monthly meeting at 9:00 a.m. on July 14, 2015 at the offices of the Mississippi Department of Environmental Quality in Jackson. Ms. Leslie Royals, PE chaired the meeting.

The Board approved minutes from the June meeting. Also the Board approved non-controversial actions/certifications by the staff since the June meeting with the following exception. The Board stated that MDEQ is delaying issuance of the permit for United Waste Systems, Star Landing Rubbish Disposal Facility in DeSoto County (Agency Interest No. 19063) pending additional consideration of an objection letter received from the DeSoto County Board of Supervisors.

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 and permits to transfer.

Surface Mining Bond Release:

Permittee	County	Permit	Staff Recommendation
J.J. Ferguson Sand and Gravel	Carroll	P87-009	Final 10% Release

Surface Mining Transfers:

Permittee	County	Permit
DK Aggregates, LLC, transfer to Wet Mine Assets Holding, LLC with new permit number P04-007AT	Hancock	P04-007A
DK Aggregates, LLC, transfer to Wet Mine Assets Holding, LLC with new permit number P04-008AT	Hancock	P04-008A
DK Aggregates, LLC, transfer to Wet Mine Assets Holding, LLC with new permit number P04-003AT	Hancock	P04-003A

Surface Mining Applications

After discussion, the Board approved the Surface Mine Applications (A1913 and A1914), along with the associated Mining Storm Water General Permits, for W.S. Red Hancock (Applicant) in Yazoo County, MS. The approved permits will allow the Applicant to conduct the following activities:

Permit A1913. Four acres of point bar mining on Perry Creek.
Permit A1914. Five acres of point bar mining on Perry Creek with the addition of eight acres of open pit mining for borrow material.

James Matheny of MDEQ staff stated that Perry Creek is a tributary of the Yazoo River. The Applicant has developed an acceptable remediation plan to allow natural regeneration of the creek. In addition, the permit is subject to special conditions developed by the Office of Geology. Although mining in perennial streams in no longer common in Mississippi, Mr. Matheny stated that the permit application was complete and met all requirements of the Office of Geology. Thus, MDEQ staff recommended approval of the permit.

In additional discussion, Mr. Matheny stated that the subject mine was above the ordinary high water mark established by the U.S. Corps of Engineers (Corps). The Corps is planning to conduct an additional high water inspection, after the Applicant flags the mining area, prior to commencement of mining operations. The applicant has conducted a mussel survey in cooperation with the U.S. Fish and Wildlife Service, an upland survey in cooperation with the Mississippi Department of Archives and History, and a review of species of concern with the Mississippi Department of Wildlife, Fisheries, and Parks.

Mr. Shannon Lowery, Environmental, Health, and Safety officer for W.S. Red Hancock, addressed the Board on behalf of the Applicant. Mr. Lowery stated that the Applicant has addressed the concerns of state and federal agencies in preparing its application. The Applicant has also met all requirements of MDEQ’s Office of Geology for its mining permits and MDEQ’s Office of Pollution Control for its storm water permits. The Applicant confirmed that they were in agreement with the special conditions placed in the permit by the Office of Geology and stated that their mining activities would be conducted in a manner that will minimize environmental impact.

OFFICE OF POLLUTION CONTROL

Agricultural Branch

The Board approved the Issuance of Coverage of the AFO General Permit (MSG201826) and the Issuance of Storm Water Coverage (MSR106924) for Peytons Place Poultry in Simpson County. The proposed facility will include 6 poultry houses and construction activity on 7.9 acres of property. Staff stated that upon notification by the Applicant, a neighboring property owner submitted a letter of concern. A representative of this neighbor addressed the Board and stated that the neighbor’s concerns were the proposed facility’s negative impact on their “family values,” personal health issues such as asthma, and worry about the transmission of avian influenza. After the neighbor’s representative spoke, Mr. Lipe of the Mississippi Department of Agriculture and Commerce stated that avian influenza does not presently transfer to humans, and that his agency is working with poultry producers to develop biosecurity plans to combat the spread of the disease among poultry species.

In response to the neighbor’s concerns, Mr. Peyton Little (Applicant) addressed the Board. The Applicant stated that he planned to maintain his proposed facility in accordance with all MDEQ requirements. In response to a question from the Board, Ms. Tomkins of MDEQ staff stated that the proposed area for the poultry houses is separated by a forested buffer zone on all sides. As a compromise, to address the neighboring property owner’s concerns, the Applicant agreed to maintain the trees and other vegetation in the surrounding buffer zone. The Board expressed its appreciation to Mr. Little for agreeing to maintain the forested buffer zone even though it exceeds the regulatory requirements of the Dry Litter Poultry Animal Feeding Operation Multimedia General Permit. The Board requested that MDEQ staff incorporate the Applicant’s commitment to retain the forested buffer zones into the Applicant’s final permit.

After discussion, MDEQ staff noted that the Application is complete and meets all technical requirements of MDEQ Regulations. Because the applicant is in compliance with all requirements, MDEQ recommended issuance of the permit.

Solid Waste Management and Mining Branch

The Board approved issuance of a State Operating Permit (MSU215001) for Waste Management of MS, Inc., Pecan Grove Landfill and Recycling Center and Rubbish Site in Harrison County. The new permit will allow the facility to treat its leachate onsite and apply it to areas within the facility’s footprint for irrigation and dust control. The permit’s application rate will prevent any runoff of treated leachate from the facility’s boundaries. The site formerly collected and transported leachate offsite for treatment.

MDEQ staff stated that the facility’s application is complete and that a public hearing on the permit was held on July 7, 2015. There were no attendees at the permit board meeting.

OTHER BUSINESS

David Snodgrass, RPG was elected as chairman of the Board and Michael Bograd, RPG was elected vice-chairman for the next 1-year term.

Roy Furrh, MDEQ General Council, reminded the Board and attendees that the evidentiary hearing for the West Rankin Utility Authority NPDES Permit No. MS0061743 is scheduled for September 1-2, 2015, beginning at 9 a.m.

The next Permit Board meeting will be held on August 11, 2015 at 9 a.m.

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Mississippi’s Newest Gun Law – and Its Impact on Businesses and Employers

July 17, 2015 by Brunini Law

While most Mississippians were aware that, beginning July 1, 2015, the State no longer requires motorists to annually renew their vehicle’s inspection stickers, July 1^stalso ushered in a new wave of laws impacting gun rights within the State. And, as with the passage of the much more publicized “Open Carry Law” in 2013, Mississippi’s businesses and employers must be aware of the potential implications of our state’s newest gun laws.

On April 10, 2015, Governor Phil Bryant signed 2015 Senate Bill 2394—sponsored by Senator Terry Burton (R. Newton)—into law. Dubbed the “Purse Carry Law” for short, beginning on July 1, 2015, Bill 2394—now codified in Mississippi Code Annotated §45-9-101(24)—creates a broad exception to the State’s existing “concealed carry permit” requirements. Specifically, the new law states that Mississippi citizens are not required to obtain a concealed weapon license/permit in order to carry a “loaded or unloaded pistol or revolver” in a “purse, handbag, satchel, other similar bag or briefcase or fully enclosed case.” Prior to the passage of this law, carrying a pistol or revolver in such a “fully enclosed case” qualified as carrying of a concealed weapon, for which Mississippians were required to obtain a license or permit.

The “Purse Carry Law” follows on the heels of the Legislature’s passage of the State’s “Open Carry Law.” Passed in 2013, the State’s Open Carry Law amended several sections of the Mississippi Code in an effort to provide further “clarification” as to what qualified as a “carrying a concealed weapon” (which requires a license/permit), as opposed to what qualified as “open carrying of a firearm” (which does not require a license/permit). While proponents of the Open Carry Law argued that the legislation merely “restated the right to bear arms as provided by the Mississippi Constitution,” opponents worried about the effects the Law would bring. Set to take effect on July 1, 2013, the Open Carry Law was initially blocked from taking effect due to a restraining order issued by Hinds County Circuit Judge Winston Kidd. Following the receipt of wide-ranging support of the Law—including support from Governor Bryant, about 80 state lawmakers and the National Rifle Association—the Mississippi Supreme Court unanimously overturned Judge Kidd’s restraining order on August 29, 2013, allowing the Law to take effect state-wide.

When combined, the Open Carry Law and Purse Carry Law provides Mississippi citizens with the right to “openly carry” a pistol or revolver, including in a sheath or holster that is only partially visible, and the right to “conceal carry” a pistol or revolver in an enclosed bag, completely concealed from view. For business owners and employers, these laws mean that Mississippians generallyhave the right to enter your place of business with a weapon in plain view, in partial view and possibly even completely concealed from view—and all without the requirement of a Mississippi license or permit.

For businesses that wish to limit the public’s general right to carry weapons on their premises, Mississippi’s Attorney General’s Office continues to emphasize the posting of a clearly written notice (readable from a distance of at least 10 feet) that the carrying of a pistol or revolver is prohibited on your premises. Individuals who bring a firearm onto a private business with such a sign clearly posted are subject to prosecution for criminal trespass. Additionally, employers are encouraged to take additional steps by insuring that their employment policies clearly express any company prohibitions concerning employees bringing firearms (and other weapons) onto company property.

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U.S. Department of Labor Issues New Guidance on “Employee vs. Independent Contractor” Misclassification

July 15, 2015 by Brunini Law

On Wednesday, July 15, 2015, the U.S. Department of Labor (DOL) issued new guidance targeting employer misclassification of employees as independent contractors. Authored by David Weil, the head of the DOL’s Wage and Hour Division, the 15-page guidance (termed an “administrator’s interpretation”) states that, according to the DOL, “most workers” in the United States qualify as “employees” under the Fair Labor Standards Act (FLSA).

As pointed out in the guidance opinion, employees that are improperly labeled as “independent contractors” do not receive certain statutory protections under the FLSA, such as guaranteed minimum wages and overtime pay. These are in addition to other benefits provided only to “employees” by employers that are not governed by the FLSA—such as health benefits, workers’ compensation protections and unemployment benefits.

Under the FLSA, the key question in determining whether one is an “employee” versus an “independent contractor” rests on the question of economic dependence. Accordingly, the DOL utilizes the six factor “economic realities” assessment that guide employers—and DOL investigators—in determining if an individual is truly in business for himself/herself (and thus, an independent contractor), as opposed to being “economically dependent” on the employer (and thus, an employee):

Is the work an integral part of the employer’s business?
Does the worker’s managerial skill affect the worker’s opportunity for profit or loss?
How does the worker’s relative investment compare to the employer’s investment?
Does the work performed require special skill and initiative?
Is the relationship between the worker and the employer permanent or indefinite?
What is the nature and degree of the employer’s control?

The new guidance stresses that the six factor assessment should be applied “broadly,” based on the FLSA’s broad scope of employment and work standard. Supporting its interpretation for broad coverage, the DOL specifically stressed that Congress previously rejected a more narrow “common-law control” test when drafting the FLSA. Additionally, the DOL opined that the factors shouldn’t be “analyzed mechanically or in a vacuum” and no one factor should get too much weight.

“Whether a worker is an employee under the [FLSA] is a legal question determined by the economic realities of the working relationship between the employer and the worker, not by job title or any agreement that the parties may make,” Weil said Wednesday in a blog post. According to Weil, the DOL “supports the use of legitimate independent contractors— who play an important role in our economy—but when employers deliberately misclassify employees in an attempt to cut costs, everyone loses.”

The new administrator’s interpretation comes two weeks after the DOL unveiled a proposed rule that would broaden federal overtime pay regulations to cover nearly millions of additional workers, resulting in more than double the minimum salary threshold required to qualify for a “white collar” exemption under the FLSA. The proposed rule and new administrator’s interpretation likely signal the DOL’s intent to ramp-up its FLSA audit and enforcement for employers beginning in 2016.

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UPDATE: U.S. Department of Labor Releases Proposed Rule to Expand Employee Overtime Eligibility

June 30, 2015 by Brunini Law

UPDATE: The Department of Labor has established a deadline of Friday, September 4, 2015 for individuals/entities to submit comments on this Proposed Rule. We do not anticipate the DOL to extend the comment period beyond this date. If you want to offer your comment, follow the link in the article below, or go to:http://www.regulations.gov/#!documentDetail;D=WHD-2015-0001-0001

Original Newsletter sent June 30, 2015:

On Tuesday, the United States Department of Labor (the DOL) released its newest Proposed Rule that, if implemented, would broaden federal overtime pay regulations to cover 5 million additional workers who are currently exempt from overtime eligibility. Under the Proposed Rule, the DOL seeks to update the regulations governing which executive, administrative, and professional employees (the so-called “white collar” workers) are entitled to minimum wage and overtime pay protections under the Fair Labor Standards Act (the FLSA).

The FLSA requires employers to pay its “non-exempt employees” overtime (1 ½ the workers’ “regular rate of pay”) for all hours worked in excess of forty (40) per week. 29 U.S.C. § 207. The DOL’s regulations implementing the FLSA sets forth a variety of employment classifications that are “exempt” from the FLSA’s overtime requirement—including employees performing executive, administrative, and/or professional job duties. Since the 1940’s, in order for an employee to qualify as an exempt “white collar” employee, he/she had to meet three “tests”: (1) the employee must be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed; (2) the amount of salary paid must meet a minimum specified amount; and (3) the employee’s job duties must primarily involve executive, administrative, or professional duties (as defined by the regulations). The DOL last updated these regulations in 2004, setting the current minimum salary threshold at $455 per week (or $23,660 per year).

With its proposed rule, the DOL seeks to update the salary level required for exemption and to identify ways to “simplify” the identification of nonexempt employees. The key provisions of the Proposed Rule include raising the minimum salary level for exempt employees to $921 per week (or $47,892 annually); and increasing the total annual compensation requirement needed to exempt “highly compensated employees” to $122,148 annually (currently set at $100,000 annually). In addition, the DOL proposes the establishment of a mechanism to automatically update these salary thresholds going forward in the future, in an effort to keep the thresholds from “becoming outdated” as time passes between rulemakings.

While the DOL also targets the specific duties needed to qualify for an exempt “white collar” employee, the DOL’s Proposed Rule stops short of including actual proposed changes to the duties tests applicable to the white collar exemptions. Instead, the DOL said it was considering whether changes to those tests were needed and requested comments on the current requirements.

If the Proposed Rule is adopted, the DOL estimates that over 5 million workers who are currently classified as “salaried exempt”—and thus, not eligible for overtime—will become eligible for overtime pay. Other observers feel the number could rise as high as 10 million. If implemented, the Proposed Rules will undoubtedly result in greater expense or operational change for many employers as they struggle to deal with a shrinking pool of workers who are eligible for an exemption from the overtime pay.

The Proposed Rule is still subject to a lengthy comment period before implementation. The DOL encourages interested parties to submit comments on the Proposed Rule via its dedicated website:http://www.dol.gov/whd/overtime/NPRM2015/.

Though the Proposed Rule has not yet been finalized, employers are encouraged to be proactive and engage their legal counsel to begin planning for the change now. Preparations should include auditing current practices and projecting the cost of change and FLSA compliance under the anticipated new framework. This includes evaluating the possibility and effects of significantly higher operating costs.

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U.S. Supreme Court’s Same-Sex Marriage Decision & Its Potential Impact on Employers

June 27, 2015 by Brunini Law

In a historic decision on Friday, June 26, 2015, the United States Supreme Court recognized a fundamental right for same-sex couples to marry throughout the country. In a 5-4 opinion, authored by Justice Anthony Kennedy, the Court held that both the Due Process and Equal Protection Clauses of the Fourteenth Amendment require states to license a marriage between two people of the same sex.

The Decision

The opinion (Obergefell et al. v. Hodges, No. 14-556) consolidated four federal court cases that presented two questions: first, does the Constitution require states to issue marriage licenses to same-sex couples; and second, are states required to recognize same-sex marriages performed elsewhere. The Court answered both questions in the affirmative.

On Due Process grounds, the Court stated that the Constitution guarantees same-sex couples the right to marry because: (1) “the right to personal choice regarding marriage is inherent in the concept of individual autonomy”; (2) the right to marry “supports a two-person union unlike any other in its importance to the committed individuals”; (3) the right to marry “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education”; and (4) marriage is a “keystone of [the Nation’s] social order” for which there is no difference between same-sex and opposite-sex couples. Additionally, the Court also relied on the Equal Protection Clause to reach its decision, but with substantially less analysis.

Of note, the opinion expressly recognized the First Amendment rights of religious organizations and individuals to oppose same-sex marriage. Thus, there may be a latent conflict between the fundamental right to marry laid out in this opinion, and the expansive view of religious liberty laid out in opinions like Burwell v. Hobby Lobby Stores, Inc.

The Potential Impact

Although the tone of Friday’s decision was far-reaching, the full impact of the decision remains to be felt. For example, although it is clear that the states must recognize same-sex marriage, it is not clear that private employers are required to do so where such policies do not flow from federal or state law. (I.e., rights under employer-provided leave policies vs. FMLA leave rights). However, policies that treat opposite-sex spouses differently from same-sex spouses may become subject to legal challenge, as Friday’s decision will likely become a basis for litigation to further expand the reach of laws such as Title VII.

Of note, Friday’s ruling does not appear to impact other private employer discrimination claims. Specifically, in states that do not extend anti-discrimination protections to LGBT individuals in employment at the state level (such as Mississippi), while gay or lesbian individuals in these states are now able to lawfully wed, this ruling does not afford them employment anti-discrimination protections under Title VII. However, most legal experts expect additional litigation challenging adverse employment actions taken on the basis of sexual orientation—especially in light of the Court’s decision.

By highlighting the Court’s previous decision in Burwell v. Hobby Lobby Stores, Inc., the Court possibly foreshadowed a looming challenge between the federal government and private religious-based employers who feel recognizing same sex marriage (through the offering of employee benefits) violates their First Amendment religious protections. Can the employer opt to not provide the benefit to any “married” employee, regardless of sexual orientation? What about for mandatory federal benefits, such as the Family and Medical Leave Act? The Supreme Court’s decision in Obergefell did not resolve these questions.

The primary impact of this decision from the employer benefit plan perspective will be on health and welfare benefits.

Friday’s decision will impact some employers’ health and welfare benefits design and administration. After theUnited States v. Windsor decision in 2013 (which struck down part of the federal Defense of Marriage Act), employers who offered same-sex spouses health and welfare benefits were able to treat those benefits as non-taxable for federal tax purposes. In those states that did not previously recognize same-sex marriage, however, those benefits may have been subject to state taxes. This created a situation where some same-sex spousal welfare benefits were taxable for state tax purposes but not for federal tax purposes–resulting in the potential for participant confusion and administrative burden for the plan sponsor. After this ruling, those benefits should no longer be taxable for federal or state tax purposes which should ease administration for employers.
In addition, employers who had previously defined “spouse” for purposes of their welfare plans based on a state definition, should consider revisiting those definitions, to see if changes in administration are necessary. Employer welfare plans that continue to define “spouse” for purposes of welfare benefits to exclude same-sex marriages should expect an increased chance of potential legal challenges in light of the new ruling.

Possible changes:

Employers may need to make administrative changes to cover same-sex spouses in states where they were not previously covered.
For example, employers will need to modify enrollment processes and create or modify consent and eligibility forms.
The state income tax treatment of employer-provided benefits could change for individuals with same-sex spouses.
With anticipated changes to the state income tax treatment, workers with same-sex spouses covered by employer plans will no longer need to pay imputed income on those benefits. Further, it will eventually be unnecessary for employers to continue to calculate imputed income.
Eligibility rules for employer-provided benefits could change, which would open up eligibility to same-sex spouses in all states.
In contrast, employers might discontinue same-sex domestic partner benefits, if all employees are able to marry in their state.

This ruling may impact the number of people who are considered spouses, but should not require a qualified retirement plan change. After the United States v. Windsordecision in 2013, the IRS issued guidance providing that for federal tax purposes the IRS applied a “state of celebration” rule. As a result, qualified retirement plans, which rely on the Internal Revenue Code definition of spouse, have already been considering same-sex spouses as “spouses” for purposes of those plans.

The Supreme Court’s decision on Friday was just the latest in a recent trend of legal and legislative changes that could alter the obligations employers face in offering benefits for their employees, and complying with regulations administering these obligations. We encourage you to have your legal professional review your current employment practices and policies to ensure up-to-date compliance with this ever-changing landscape.

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Christopher R. Fontan

Mississippi Environmental Quality Permit Board Summary of Meeting Held June 11, 2015

June 17, 2015 by Brunini Law

Prepared By Brunini, Grantham, Grower & Hewes, PLLC

Meeting Summary

The Mississippi Department of Environmental Quality Permit Board (Board) convened its regular monthly meeting at 9:00 a.m. on June 11, 2015 at the offices of the Mississippi Department of Environmental Quality in Jackson. Ms. Leslie Royals, PE chaired the meeting. The Board approved minutes from the May meeting and all non-controversial actions/certifications by the staff since the May meeting. Following a prepared agenda, items considered were as follows:

OFFICE OF GEOLOGY

In accordance with staff’s recommendations, the Board approved the following surface mining bond releases and permit to transfer.

Surface Mining Bond Releases:

Permittee	County	Permit	Staff Recommendation
Blain Sand and Gravel Co.	Lawrence	P99-050	Final 10% Release
Green Brothers Gravel	Copiah	P96-072	Additional 20% Release
Green Brothers Gravel	Copiah	P00-026A	Additional 20% Release
Green Brothers Gravel	Marion	P02-052A	Additional 15% Release
Green Brothers Gravel	Marion	P07-003A	Final 10% Release
Green Brothers Gravel	Marion	P08-0100AAA	Initial 15% Release
Green Brothers Gravel	Copiah	P08-015AA	Initial 25% Release
Green Brothers Gravel	Copiah	P09-021A	Additional 20% Release
Green Brothers Gravel	Copiah	P09-005A	Additional 20% Release
Joe McGee Construction Co., Inc.	Madison	P06-024	No Additional Release
Joe McGee Construction Co., Inc.	Chickasaw	P07-004	Final 10% Release
Joe McGee Construction Co., Inc.	Chickasaw	P08-011	No Additional Release
Joe McGee Construction Co., Inc.	Winston	P13-015	Initial 60% Release
Joe McGee Construction Co., Inc.	Newton	P10-031	Initial 60% Release
Tanner Construction Co., Inc.	Jefferson Davis	P96-016T	No Additional Release
Tanner Construction Co., Inc.	Lawrence	P04-050	Final 10% Release
Tanner Construction Co., Inc.	Lawrence	P07-005A	Additional 10% Release
Tri-State Jackson Lands, LLC	Hinds	P06-008T	Initial 90% Release

Surface Mining Transfer:

Permittee	County	Permit
APAC-Mississippi, Inc., transfer to David Honnell with new permit number P04-021T3	Panola	P04-021T2

OFFICE OF POLLUTION CONTROL

Agricultural Branch

The Board approved the Issuance of Coverage of the AFO General Permit (MSG201818) and the Issuance of Storm Water Coverage (MSR106885) for Justin Horn Poultry in Lamar County. The proposed facility would include 6 poultry houses construction activity on 7.6 acres of property. Staff stated that upon notification by the Applicant, three nearby property owners submitted letters of concern. Three parties attended the meeting and stated their concerns to the Board: odors for the chicken houses, composting, and litter application; concerns about water quality due to runoff; decreasing property values; and aggravation of health problems. MDEQ staff noted that the Application is complete and that all required buffer zone distances between the proposed facility and neighboring property and dwellings are within the technical requirements of MDEQ Regulations. MDEQ staff performed a Site Inspection of the proposed location. Because the applicant is in compliance with all requirements, MDEQ recommended issuance of the permit. After discussion, the Board approved the proposed permits.

OTHER BUSINESS

Roy Furrh, MDEQ General Council, stated that the evidentiary hearing for tDry Asset Facility Holdings, LLC (Pearl River County) Permit Transfer application has been postponed because the facility submitted a revised application for its water quality certification. The hearing will be rescheduled after MDEQ staff review the revised application.

Upon a request by the City of Jackson, MDEQ has scheduled an evidentiary hearing for the West Rankin Utility Authority NPDES Permit No. MS0061743. The hearing is scheduled for September 1-2, 2015, beginning at 9 a.m.

The next Permit Board meeting will be held on July 14, 2015 at 9 a.m.

This Newsletter is a publication of the Environmental Department of the law firm of Brunini, Grantham, Grower & Hewes, PLLC, located in Jackson, Mississippi.

This Newsletter is not designed or intended to provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.

IRS Circular 230 Notice

Related Attorneys

The Things We Missed While Daydreaming in College Statistics

May 26, 2015 by Brunini Law

While I love numbers and “statistics” in the baseball sense of the word, I must admit that I never sat through a class in college that I considered more worthless than Statistics. I never considered a regression analysis too hard to regurgitate on a test, but the necessity of it escaped me. Possibly it was my instructor who failed to adequately explain to me when such information could ever be worth the money my parents were paying for me to receive it, or possibly it was me who failed to pay close enough attention to him when he tried to do so (the latter is probably more likely than the former), but I could not in my wildest dreams ever foresee a time when that knowledge would have practical application to my personal or professional life.

Following college, I’m not sure the concepts I learned in statistics ever reentered my mind until I was a young lawyer and learned that Federal banking regulators were using regression analyses to decide whether or not banks were complying with Fair Lending laws. Evidently, they did not have the same college Statistics experience I did since they not only found that information useful but also considered it worthy of reliance as substantiation of the ultimate “Scarlet Letter” in banking known as discrimination. While I still consider that point debatable and often believe there are parallels between Fair Lending enforcement and “The Crucible” (I am full of college curriculum references today), I will say that age and Microsoft Excel have at least allowed me to find interesting uses for Statistics, even though their reliance may still be debatable.

For example, there is a function in Excel that allows you to calculate the correlation between one set of data points and another set of data points. You statisticians and regulators out there already know that the calculation of “r,” or “Person’s correlation coefficient,” is a measure of the linear correlation between two variables. This measurement is reflected through a value between -1 and 1, with a result of 1 meaning that the two data points are perfectly correlated in a positive way (i.e., as x moves, so does y), and a result of -1 meaning that the two data points are negatively correlated (i.e., as x moves up, so does y move down). A result of 0 implies that there is no linear relationship at all between the two data points, and a correlation of 0.80 and above is generally considered as statistically significant enough to indicate a linear relationship.

“My head is hurting,” you say. “I am not a regulator, so I can’t possibly see what any of this has to do with banking.” Well, as I implied above, Microsoft Excel has a formula function that allows you to calculate “r” for different data points. When I realized that, I thought it might be fun (or at least interesting) to analyze the linear relationships between varying bank performance ratios and the typical bank profitability ratios (i.e., ROA, Pretax ROA, and ROE) in order to see, for example, if a higher net interest margin for banks studied could be related to higher profitability for banks during a given period of time. By using the same peer group data from the last five years of UBPR reports that I have referred to in all of my previous articles, I decided to try this. What I found was even more interesting than I thought it would be.

First of all, many of the bank performance ratios and statistics that are often presumed to be primary drivers of profitability appeared to have little correlation to ROA, ROE, or pretax ROA over the last five years. For example, consistent with my earlier articles questioning the benefits of size for banks, the average total assets for all peer groups between 2010 and 2014 had an “r” of 0.21 to ROA, 0.19 to ROE, and 0.32 to pretax ROA. If 0.80 is the standard for a statistically significant correlation, then total assets seems barely correlated to profitability at all. Another commonly held position is that a bank’s loans to assets drives profitability since it obviously increases the bank’s earning asset yields; however, loans to assets had a 0.01 r to pretax ROA, a 0 r to ROE, and actually a -.05 r to ROA, indicating no correlation to a slightly negative one.

So what about Net Interest Margin, the holy grail of community banking? How many countless hours are spent by bankers around Board and ALCO meeting tables wringing hands and thinking of some way to add one more basis point to a bank’s Net Interest Margin in order to improve bank profitability? Well, Net Interest Margin had negative correlations to each of the profitability measures, with a -.23 r to ROE, -.30 r to ROA, and a -.35 r to pretax ROA. As a matter of fact, if you compare those results to the correlation results for total assets, Net Interest Margin was more negatively correlated to profitability than total assets were positively correlated to the same.

So if size, loans, and Net Interest Margin were not correlated with bank profitability over the last five years, what was? I guess it shouldn’t be a surprise after the research I documented in my earlier articles that ratios dealing with a bank’s ability to control costs exhibited the strongest correlations during the period studied. For example, the ratio of other expenses to total assets was very strongly and negatively correlated with ROA, ROE, and pretax ROA (-0.86, -0.86, and -.84, respectively), indicating that profitability often went down as this ratio increased. Efficiency ratio exhibited the next strongest negative correlation, with an “r” of -0.83 to ROA, -0.83 to ROE, and -0.84 to pretax ROA. A close third was bank Burden (i.e., non-interest expense less non-interest income), which had “r’s” to ROA, ROE, and pretax ROA of -0.77, -0.74, and -0.81, respectively. Notice that each of these “expense” centric measurements had correlation coefficients with negative correlations that were arguably statistically significant.

Chart 8: Correlation of Bank Performance Ratios to Profitability

CHART-FOR-BLOG

So what can we take from this, other than a bad reminder of college statistics? Probably nothing in and of itself since your college professors would tell you that “r” was never meant to predict causal relationships but instead merely indicate how two sets of data points may be linearly related; however, considering the evidence from my past articles, I’m not sure we can completely ignore it either. If nothing else, it seems to be further evidence of the fact that, at least during the last five years, a bank’s ability to grow or produce interest income was not nearly as important to the return their shareholders received as was the costs they incurred generating that extra dollar. The latter definitely seems like it was more harmful than the former was helpful. Would it be any different in an alternate part of the interest rate or economic cycle, though? After all, the last five years were most definitely unique in that historically low interest rates perpetuated through a historically tepid recovery. We will consider that point in my next article.