On October 8, 2015, the Mississippi Supreme Court unanimously affirmed the Madison County Circuit Court’s judgment confirming a substantial arbitration award in favor of Regions Insurance, Inc. d/b/a Regions Insurance. The underlying arbitration involved two former employees’ violations of their employment contracts with Regions. Specifically, Regions alleged the former employees wrongfully and intentionally conspired together and with their new employer, a direct competitor of Regions, to divert business from Regions to themselves. The arbitrator found that the former employees breached their employment agreements with Regions and awarded Regions compensatory damages pursuant to the defined formula in the agreements, punitive damages, attorneys’ fees, and arbitration expenses and costs. The Madison County Circuit Court affirmed the arbitration award, despite the former employees’ arguments that the arbitrator exceeded his powers by awarding equitable relief and that the arbitrator’s conversation with a potential witness after the hearing but before issuing the award constituted undue means, misconduct or misbehavior. The former employees appealed the Circuit Court’s judgment to the Mississippi Supreme Court, and the Mississippi Supreme Court held that the arbitrator did not exceed his authority because the former employees’ submission to arbitration included Regions’ claim for damages pursuant to the defined formula. Additionally, because the arbitrator’s conversation with the potential witness was neither material nor influential to the award, the Court found that the arbitration award was not procured by undue means and that the arbitrator’s conduct did not prejudice the former employees’ rights.
Mississippi Environmental Quality Permit Board Summary of Meeting Held September 8, 2015
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 September 8, 2015 at the offices of the Mississippi Department of Environmental Quality in Jackson. Mr. David H. Snodgrass, RPG chaired the meeting.
The Board approved minutes from the August meeting. Also the Board approved non-controversial actions/certifications by the staff since the August 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 releases and permits to transfer.
Surface Mining Bond Release:
|
Permittee |
County |
Permit |
Staff Recommendation |
| Eutaw Construction Company |
Monroe |
P98-025 |
Initial 80% Release |
| Hammett Gravel Company |
Holmes |
P00-019 |
Final 30% Release |
| Hammett Gravel Company |
Holmes |
P00-059 |
Final 40% Release |
| Lloyd G. Spivey, Jr. |
Madison |
P02-014 |
Final 10% Release |
| Dubois Dozer & Dirt, Inc. |
Rankin |
P06-015 |
Additional 30% Release |
| Dubois Dozer & Dirt, Inc. |
Rankin |
P06-031 |
Final 50% Release |
| Dubois Dozer & Dirt, Inc. |
Rankin |
P08-012A |
Initial 60% Release |
Surface Mining Permit to Rescind:
|
Permittee |
County |
Permit |
| Standard Gravel Company, Inc. |
Forrest |
P08-002 |
| Edgin Construction, Inc. |
Adams |
P07-008 |
OFFICE OF POLLUTION CONTROL
Construction Branch:
The Board approved issuance of the Modification of Asphalt General Permit Coverage (MSR700098) for Huey P. Stockstill, LLC, Picayune Ready Mix and Asphalt Plant. Upon notification by the Applicant, a neighboring property owner submitted a letter of concern requesting that the Applicant locate the facility a less-populated area. The letter did not express any environmental concerns. Because facility’s application is complete and the facility is currently in compliance, MDEQ recommended issuance of the Modification.
Solid Waste Management and Mining Branch:
The Board approved Reissuance of Solid Waste Permit (SW009010B0302) for Waste Management of Mississippi, Inc., Prairie Bluff Sanitary Landfill and Recycling Center in Chickasaw County. A public hearing on the permit was held, and there was no opposition at the hearing. Because the facility’s application is complete and the facility is currently in compliance, MDEQ staff recommended reissuance of the Permit.
Agricultural Branch:
The Board approved modification of coverage under the AFO General Permit (MSG201834) and Storm Water Coverage (MSR106963) for GottaGo Poultry in Copiah County. The modification will include eight poultry houses and construction activity on twelve acres of land. Staff stated that upon notification by the Applicant, a neighboring property owner submitted a letter of concern regarding health risks. Because the facility’s application is complete and the facility is currently in compliance, MDEQ staff recommended issuance of the modification.
Solid Waste Policy, Planning, and Grants Branch:
The Board approved the proposed Statewide General Permit for Biosolids Land Application (SWGP-BLA). Sites approved under this permit must meet the siting and operational standards established by the Mississippi Nonhazardous Solid Waste Management Regulations as well as Federal Standards for the Use and Disposal of Sewage Sludge. Facilities approved under the General Permit will be required to prevent run-off and limit public access and livestock grazing.
MDEQ received three comments at public hearing on the draft General Permit held on August 4, 2015. In addition, two letters of concern were submitted to the agency. The stated concerns included sludge application methods, the possibility of runoff from application sites, and the advantage of a general permit compared to an individual permit.
In response to questions from the Board, MDEQ Staff stated that the General Permit will require application methods that are similar to the individual permits already in place: biosolids will be tested prior to application, buffers between adjacent land will be required, and access to application sites will be limited. Further, the General Permit will allow MDEQ to require monitoring of nearby streams and groundwater when site-specific conditions warrant such monitoring. Consistent with the current process for individual biosolids application permits, issuance of coverage under the General Permit will not require notification of contingent landowners. Finally, MDEQ Staff stated that they will require individual permits for biosolids application on sensitive areas or areas subject to significant public interest.
Following discussion, the Board approved the proposed General Permit with Mr. Dennis Reike voting in opposition. Mr. Reike stated he opposed the permit because it does not require groundwater and surface water monitoring and notification of contingent landowners at all permitted sites.
OTHER BUSINESS
MDEQ stated that the agency is reviewing records requests and may make changes if needed to ensure that fees remain consistent with those of other state agencies.
Minutes from the West Rankin Utility Authority Evidentiary Hearing will likely be available at the October 2015 Permit Board meeting. In addition, a draft version of the Findings of Facts will likely be available in November 2015.
The next Permit Board meeting will be held on October 13, 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.
IRS Circular 230 Notice
To ensure compliance with requirements imposed by the IRS, we inform you that, unless specifically indicated otherwise, any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any tax-related matter addressed herein.
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New NLRB Ruling Expands “Joint Employer” Standard
With a recent decision, the National Labor Relations Board (NLRB) announced broad changes to its “joint employer” standard by creating a new test that is virtually guaranteed to result in more findings of a “joint employer” relationship under the National Labor Relations Act (the Act). Under this new test, the NLRB considers a company to be a “joint-employer” if it (1) exercises “indirect control” over working conditions, or (2) if it has “reserved authority” to do so. This marks a significant departure from the NLRB’s decades-old “joint-employer” standard that required the actual exercise of control—not just the ability to do so. Affecting both unionized and non-union companies (and even entities that have no employees of their own) alike, the NLRB’s decision also has the potential for broad implications for other employment laws and government agencies such as the Department of Labor, EEOC and OFCCP.
On August 27, 2015, the NLRB issued a 3-2 ruling, involving Browning-Ferris Industries of California, Inc. (BFI), an owner/operator of a California-based recycling facility. In its decision, the NLRB ruled that BFI should be considered a “joint employer” with a Leadpoint Business Services, a temporary staffing company that provided short-term labor to BFI’s recycling facility. At the time, BFI employed approximately 60 employees—most of whom worked outside the recycling facility, moving and preparing materials to be sorted inside the facility. BFI contracted with Leadpoint to provide over 200+ in-facility workers under a temporary labor services agreement. In June 2013, the Teamsters Local 350 (the Union) filed a claim with the NLRB on behalf these in-facility employees, claiming that BFI and Leadpoint were actually their “joint-employers.”
Under the former joint-employer standard (utilized by the NLRB since 1984), the NLRB examined “whether alleged joint employers share the ability to control or co-determine essential terms and conditions of employment.” See TLI, Inc., 271 NLRB 798 (1984); Laerco Transp., 269 NLRB 324 (1984). The NLRB provided specific examples of what it considered to be “essential terms and conditions of employment,” including: hiring, firing, discipline, and supervision. TLI, Inc., 271 NLRB 798. In later decisions, NLRB emphasized the type of control exercised by alleged joint employers—requiring that the control be “direct and immediate.” See, e.g., Airborne Freight Co., 338 NLRB 597 (2002).
The NLRB’s Browning-Ferris decision overturns this 30 years of precedent. Under the new test, the NLRB first asks if there is a common-law employment relationship between the employees and the alleged employer in question. If this common-law employment relationship exists, the NLRB then asks if the alleged joint employer possesses “sufficient control” over the employees’ “essential terms and conditions of employment.” Importantly, the NLRB stated that from now on, a company possesses “sufficient control” if it has the ability to exercise control over these terms and conditions of employment. While the actual exercise of “direct and immediate” control is probative, it is no longer essential.
This decision by the NLRB vastly expands the types and number of entities that can be held responsible for unfair labor practice violations and who may be held to have collective bargaining obligations regarding employees of a totally separate, independent employer. While the NLRB claims it is clarifying its joint-employer standard, in actuality, the NLRB is completely recasting the “joint employer test.” In the past, the determination was based on a close analysis of the actual relationships between the alleged joint employers. Going forward, the NLRB will consider what the relationship between the two entitiesmight be expanded to encompass. Then, based upon that speculation, the NLRB’s decision shoehorns this “possible relationship” into a concrete joint-employer finding.
The NLRB’s Browning-Ferris decision follows on the heels of the July 2014 decision from the NLRB General Counsel stating that McDonald’s is a “joint-employer” of workers at franchised restaurants, along with the individual franchisees. The NLRB’s expanded concept of a “joint employer” also parallels recent efforts by the U.S. Department of Labor, the U.S. Equal Employment Opportunity Commission and the Office of Federal Contract Compliance Programs—all seeking to hold large companies responsible for legal compliance as to individuals from whose services they benefit—regardless of whether a direct employment relationship exists.
The NLRB’s new theory of joint employment has the potential to have far-reaching and, if so, likely troubling impacts on employers throughout the United States. In addition to facing joint liability for labor law violations, entities that are deemed to be joint employers under this new standard may face collective bargaining obligations and find themselves enmeshed in labor disputes between direct employers and labor organizations. Any companies that utilize contingent workers employed by another entity or staffing company, as well as parties to franchise agreements, should consider reviewing their employment practices, contractual arrangements and course of dealing in light of this significant change in the law.
Unfortunately, there is no single or simple solution to the issue. A company’s “joint employment” status is a factual inquiry that will vary from employer to employer. Each relationship will need to be considered in light of (as the NLRB puts it) the “industrial realities” to develop the most effective responses.
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.
IRS Circular 230 Notice
To ensure compliance with requirements imposed by the IRS, we inform you that, unless specifically indicated otherwise, any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any tax-related matter addressed herein.
Mississippi Commission on Environmental Quality Summary of Meeting Held August 27, 2015
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 Commission on Environmental Quality convened at 9:00 a.m. on August 27, 2015, at the offices of the Mississippi Department of Environmental Quality in Jackson. Chat Philips recognized W. J. Van Devender as the newly elected Commission Chair. Mr. Van Devender called the meeting to order. The Commission approved minutes from the previous meeting held on May 28, 2015.
Following a prepared agenda, items considered were as follows:
Adoption of a Revision to the State Implementation Plan (SIP) and Amendments to 11 Mississippi Administrative Code, Part 2, Chapter 11, “Regulations for Ambient Air Quality Nonattainment Areas”
The Commission approved the proposed SIP revisions and regulations amendments. The revisions correct a source applicability error in the regulations and add clarifying language regarding emission controls in nonattainment areas. MDEQ held a public hearing on July 2, 2015 concerning the proposed revisions and amendment. No comments were received.
Water Pollution Control Revolving Loan Fund (WPCRLF) Program, Conditional Adoption of FY-2015 Intended Use Plan
The Commission conditionally approved the FY-2015 Intended Use Plan (IUP) subject to completion of the required public notice period and public hearing and provided that any public commends are resolved without significant changes. The conditional approval stems from MDEQ’s obligation to finalize the FY-2015 IUP prior to September 30, 2015. Tony Caldwell of MDEQ staff stated that the draft IUP is currently at public notice, and a public hearing is scheduled for September 22, 2015.
The IUP identifies loan funds available to Mississippi communities for constructing wastewater infrastructure along with the loan interest rate, program deadlines, and other information. The FY-2015 IUP reflects new federal requirements with apply to loans issued in FY-2015 and after.
Commission Approval of Brownfield Obligation Transfer
The Commission approved the transfer of obligations in Brownfield Agreement #5958-11 from the City of Picayune and Stockstill Brothers Investments, LLC to Huey P. Stockstill, LLC. This agreement governs remediation of the Arizona Chemical Facility in Picayune. In accordance with Rule 2.1.5.C of Part 3, Chapter 2: Final Regulations Governing Brownfield Voluntary Cleanup and Redevelopment in Mississippi, the parties have jointly petitioned the Commission that Huey P. Stockstill, LLC has the financial, managerial, and technical resources to complete performance of the Agreement.
MDEQ 2017-2021 Strategic Plan
MDEQ has developed a Strategic Plan for Fiscal Years 2017-2021 as required by the Mississippi Performance Budget and Strategic Planning Act of 1994. MDEQ’s Strategic Plan includes a “clear and concise blueprint” along with performance measures for how the agency will protect human health and the environment over the next several years. A copy of the Plan was provided to each Commissioner.
Gary Rikard recognized Mr. Trey Hess as MDEQ’s leader in developing the Plan. Mr. Rikard requested that each Commissioner take the opportunity to read the Plan before approving it in a later meeting.
Hurricane Katrina Anniversary Presentation to the Commission
Richard Harrell and other MDEQ staff members delivered a presentation to the Commission commemorating the 10-year anniversary of Hurricane Katrina. At the start of the presentation, Mr. Harrell stated that Katrina caused $125 billion in damages to Mississippi in 2005. Presenters described MDEQ’s efforts to clean up these damages and assist with meeting basic needs for affected Mississippians while protecting the environment. Staff recalled efforts to dispose of massive amounts of solid waste, restore drinking water supplies, and restart wastewater treatment facilities in the days following Katrina. Presenters recognized the valiant efforts of MDEQ staff deployed to coastal counties along with those who remained in Jackson to carry out the core functions of MDEQ.
CERTIFICATIONS APPROVED
Asbestos: 364 certifications
Lead Paint: 131 certifications
Underground
Storage Tanks: 34 certifications
EMERGENCY CLEAN-UP EXPENSES APPROVED
Eight (8) emergency clean-up expenditures occurred since the last report.
ADMINISTRATIVE ORDERS APPROVED
There have been fifty (50) administrative orders were issued by the Executive Director and approved by the Commission since the last report. These include the following matters:
| Program Area | Number of Orders | Penalty Range |
| NPDES | 4 | $0 – $45,500 |
| Large Construction Stormwater | 2 | $5,000 – $10,000 |
| Air | 8 | $7,500 – $76,110 |
| Solid Waste | 1 | $3,000 |
| Ready Mix Concrete | 1 | $5,000 |
| Baseline Stormwater | 2 | $10,00 – $20,000 |
| UST | 4 | $500 – $5,000 |
| Water Well Drillers | 4 | $0 – $2,340 |
The Commission entered into an executive session to discuss pending litigation.
The next Commission meeting is scheduled for September 24, 2015.
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
To ensure compliance with requirements imposed by the IRS, we inform you that, unless specifically indicated otherwise, any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any tax-related matter addressed herein.
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New Legislation Proposes Sweeping Civil Rights Protections for LGBT Individuals
Seeking to capitalize on the political momentum generated by the U.S. Supreme Court’s recent landmark decision legalizing same-sex marriage, Democratic members of Congress recently unveiled a broad piece of proposed legislation which would greatly and expressly expand civil rights’ protections afforded to members of the lesbian, gay, bisexual and transgender community in the United States.
On July 23, 2015, Senator Jeff Merkley (D-Ore.) and Representative David Cicilline (D-R.I.) introduced The Equality Act. If passed, the Equality Act would extend the 1964 Civil Rights Act’s protections against racial and sex-based discrimination to include–and ban–discrimination on the basis of both sexual orientation and gender identity. If passed, the Equality Act would prohibit discrimination against LGBT persons in categories ranging from employment to housing to education to jury selection and service. Additionally, the proposed legislation would broaden areas of illegal discrimination in “public accommodation.” Presently, only 19 states have laws prohibiting discrimination based on an individual’s sexual orientation and/or gender identity.
Since 1994, Democratic members of Congress have sought to pass legislation known as the Employment Non-Discrimination Act (the “ENDA”). As proposed, the ENDA sought to amend only Title VII of the 1964 Civil Rights Act by expressly enumerating “sexual orientation” and “gender identity” as protected classes under Title VII–thus prohibiting employers from discriminating against LGBT individuals in employment decisions. Despite several close attempts, Congress has yet to pass the ENDA. The Equality Act, as written, would accomplish the same goals as the ENDA and beyond.
One key issue of contention during Congressional debate over the ENDA dealt with objections (and potential exceptions) based on religious liberty. While the Equality Act does preserve exemptions for religious corporations, schools and associations in areas such as hiring, the Equality Act expressly prohibits use of the federal Religious Freedom Restoration Act–and most likely, its state counterparts–to justify discrimination that would otherwise be banned under the Act. Experts expect this provision to be a key area of division during debate over the Act, as both federal and state religious freedom acts have been relied-upon by business owners and others with sincerely-held religious objections to same-sex marriage in declining to service LGBT customers.
Recently, the U.S. EEOC issued guidance and opinions setting forth its belief that Title VII, as written, provides employment protection for individuals on the basis of sexual orientation. However, this position has yet to be fully adopted at the judicial level. If passed, the Equality Act would nullify this debate and present employers with two additional protected characteristics (and practically speaking, 4 new protected classes) for which they must account.
Additionally, the Equality Act would require employers and other businesses to review other aspects of their operations–to its employees, its customers, and to the public at-large–to ensure “public accommodation” compliance for LGBT individuals. The most common and immediate example cited by industry professionals revolves around employer/company “bathroom policies,” as it involves transgender individuals.
Presently, the Equality Act has over 200 Congressional co-sponsors in both the House and Senate–but none from the Republican side of the aisle. While remaining optimistic, co-sponsors Sen. Merkley and Rep. Cicilline admit that ultimate passage of the Equality Act will be difficult without some bi-partisan support.
Mississippi Environmental Quality Permit Board Summary of Meeting Held August 11, 2015
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.
IRS Circular 230 Notice
To ensure compliance with requirements imposed by the IRS, we inform you that, unless specifically indicated otherwise, any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any tax-related matter addressed herein.
Related Attorneys
BRUNINI’S JOHN MILNER ELECTED AS VICE CHAIR OF THE AMERICAN BAR ASSOCIATION’S SECTION OF ENVIRONMENT, ENERGY AND RESOURCES
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.
Related Attorneys
U.S. EEOC Rules Workplace Discrimination Based on “Sexual Orientation” Already Illegal Under Federal 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.
IRS Circular 230 Notice
To ensure compliance with requirements imposed by the IRS, we inform you that, unless specifically indicated otherwise, any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any tax-related matter addressed herein.
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Mississippi Environmental Quality Permit Board Summary of Meeting Held July 14, 2015
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 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.
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.
IRS Circular 230 Notice
To ensure compliance with requirements imposed by the IRS, we inform you that, unless specifically indicated otherwise, any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any tax-related matter addressed herein.
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Mississippi’s Newest Gun Law – and Its Impact on Businesses and Employers
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 1stalso 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.
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.
IRS Circular 230 Notice
To ensure compliance with requirements imposed by the IRS, we inform you that, unless specifically indicated otherwise, any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any tax-related matter addressed herein.