Brunini Law

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.

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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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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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

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 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

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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.

BRUNINI RECOGNIZED AMONG TOP LAW FIRMS IN MISSISSIPPI BY CHAMBERS USA

May 5, 2015 by Brunini Law

The 2015 edition of Chambers USA, which lists leading law firms and individual lawyers in an extensive range of practice areas, jointly awarded high rankings to ten Brunini attorneys and five of the firm’s practice areas.

Chambers USA ranked five of Brunini’s practices, including the firm’s Energy & Natural Resources, Environment, Real Estate, Commercial Litigation and Corporate/Commercial practices, all of which were highly ranked.

Each year, Chambers USA conducts thousands of interviews and surveys with lawyers and their clients, as well as analyzes its own database resources, to determine rankings for top law firms and individual attorneys. The qualities on which rankings are assessed include technical legal ability, professional conduct, client service, commercial astuteness, diligence, commitment and other qualities valued by clients.

“The Brunini firm is truly honored to have its practice groups and individual lawyers recognized by our clients as among the best in Mississippi through one of the nation’s most respected legal directories,” said Sam Kelly, Chairman of the firm’s Board of Directors. “Our commitment to client service and a long history of legal excellence are hallmarks that set us apart in Mississippi, and those are good reasons to earn the respect of business leaders and peers.”

A collective list of the nine Brunini attorneys recognized as among the best in their fields in Mississippi by Chambers USAinclude:

Corporate/Commercial

Louis Fuller

Walter Weems

Corporate/Commercial: Banking & Finance

Granville Tate, Jr.

Energy & Natural Resources

James L. Halford

Watts C. Ueltschey

Environment

John E. Milner

Litigation: Construction

Samuel C. Kelly

Ron A. Yarbrough

Litigation: General Commercial

R. David Kaufman

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Mississippi Commission on Environmental Quality Summary of Meeting Held April 23, 2015

April 23, 2015 by Brunini Law

Prepared By Brunini, Grantham, Grower & Hewes, PLLC

Meeting Summary

The Mississippi Commission on Environmental Quality convened at 9:00 a.m. on April 23, 2015, at the offices of the Mississippi Department of Environmental Quality in Jackson. The Commission approved minutes from the previous meeting held on February 26, 2015.

Following a prepared agenda, items considered were as follows:

COMMISSION APPROVAL OF REICHHOLD ENVIRONMENTAL COVENANT

The Commission approved an environmental covenant in which Reichhold, Inc., will place in the public land records of Harrison County as part of the final EPA-approved remediation of Reichhold’s resin plant in Gulfport, Mississippi.

COMMISSION APPROVAL FOR REGULATORY VARIANCE

After a short demonstration by Tronox, LLC, the Commission approved a regulatory variance to allow Tronox to construct its proposed on-site non-hazardous solid waste landfill with a constructed clay sublayer instead of the natural geology requirement.

PILOT TRAVEL CENTERS LLC PROPOSED ORDER

The Commission adopted and approved an order proposed by the MDEQ staff to memorialize the Commission’s prior decision denying Pilot Travel Centers LLC’s request for eligibility under the Mississippi Groundwater Protection Trust Fund for assessment and remediation of Pilot’s underground storage tank (UST) site in Moss Point, Mississippi.

CERTIFICATIONS APPROVED

Asbestos: 240 certifications

Lead Paint: 141 certifications

Underground

Storage Tanks: 22 certifications

EMERGENCY CLEAN-UP EXPENSES APPROVED

Seven (7) emergency clean-up expenditures occurred since the last report.

ADMINISTRATIVE ORDERS APPROVED

Twenty (20) 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	1	$1,500
Large Construction Stormwater	3	$5,000 – $7.500
Air	5	$4,875 – $50,000
Hazardous Waste	1	$7,425
Ready Mix Concrete	1	$2,500
Baseline Stormwater	1	$7,500

Order No. 6503 15 set the annual Title V air permit fee for fiscal year 2016 at $41/ton, with a minimum fee of $250. The Commission approved the amount at the February meeting of the Commission and subsequently issued an administrative order within a few days after the February meeting so that the matter was subject to public comment before the April meeting.

The next Commission meeting is scheduled for May 28, 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

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Supplement to Mississippi Environmental Quality Permit Board Summary of Meeting Held April 14, 2015

April 22, 2015 by Brunini Law

Prepared By Brunini, Grantham, Grower & Hewes, PLLC

Meeting Summary

The Mississippi Environmental Quality Permit Board (Board) convened its regular monthly meeting at 9:00 a.m. on April 14, 2015 at the offices of the Mississippi Department of Environmental Quality in Jackson. The portion of the April 21 summary of this April 14 Board meeting regarding the discussion of the Board’s action relating to the West Rankin Utility Authority’s (WRUA) permit application is corrected and clarified as follows. The Board did not approve the WRUA permit in closed session. The Board members went into closed session briefly to decide if they needed to go into an executive session to discuss potential legal issues or lawsuits that may arise from the issue. However, they decided there was no need to go into an executive session at that time, so they adjourned the closed session, invited everyone back into the meeting and returned to open session. At that time, after brief discussion while in open session, they voted to issue the WRUA permit.

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

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

April 21, 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 April 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 March meeting and all non-controversial actions/certifications by the staff since the March meeting. Following a prepared agenda, items considered were as follows:

LEGAL DIVISION

Mr. Roy Furrh, MDEQ General Council, presented the Proposed Rules of Practice and Procedure for Formal Evidentiary Hearings before the Mississippi Environmental Quality Permit Board for the Board’s consideration and adoption. The Board approved the Proposed Rules upon recommendation by MDEQ’s Legal Department.

OFFICE OF GEOLOGY

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

Surface Mining Bond Releases:

Permittee	County	Permit	Staff Recommendation
Jim Castleberry, Castleberry Trucking	DeSoto	P94-082	Final 10% Release
Jim Castleberry, Castleberry Trucking	DeSoto	P95-054	Final 10% Release
Jim Castleberry, Castleberry Trucking	DeSoto	P95-119	Final 10% Release
Jim Castleberry, Castleberry Trucking	DeSoto	P00-012	Final 10% Release
Jim Castleberry, Castleberry Trucking	DeSoto	P00-013	Final 10% Release
Jim Castleberry, Castleberry Trucking	DeSoto	P03-007	Final 10% Release
Baldwin Sand & Gravel	Lowndes	P02-029A	Final 30% Release
W.G. Yates & Sons Construction Co.	DeSoto	P14-004	Initial 10% Release
W.G. Yates & Sons Construction Co.	DeSoto	P13-004T	Initial 10% Release

Surface Mining Partial Permit Transfer:

Permittee	County	Permit
Joe McGee Construction Company, Inc., transfer to Green Earth Materials, LLC	Rankin	P06-010T1

OFFICE OF POLLUTION CONTROL

Construction Building Material Branch

MDEQ staff recommended approval of a Ready Mix Concrete General Permit for the Oscar Renda Contracting, Biloxi North Facility in Harrison County. MDEQ staff noted that the application is complete. Upon notification by the Applicant, three contiguous land owners issued letters of concern regarding stormwater, wastewater and declining property values. Tony Morrow, Project Manger for the Applicant, described the facility as temporary in nature. The contiguous landowners did not appear before the Board. After discussion, the Board approved the General Coverage Permit (MSG110313).

Agricultural Branch

MDEQ staff recommended reissuance of Animal Feeding Operation (AFO) and issuance of Storm Water Permits for JJ Farm in Newton County. Upon notification by Applicant, four landowners issued letters of concern regarding the number of poultry houses, proximity of poultry houses to residential homes, noise, and runoff issues. However, responding land owners are outside of the buffer zone. The landowners did not appear before the Board. Based on MDEQ staff recommendation, the Board approved AFO General Permit (MSG201044) and Storm Water Coverage (MSR106830).

Solid Waste Management & Mining

Staff recommended renewal of the Wastewater Pretreatment and Stormwater Permit, modification of Solid Waste Permit, and issuance of Title V Permit for Pine Belt Regional Solid Waste Management Authority in Perry County. There was no opposition by adjoining property owners. Based on Staff recommendation, the Board approved the following permits: Wastewater Pretreatment (MSP091106), NPDES Stormwater (MSS048658), Title V (2200-00025), and Solid Waste Permit (SW0560010436).

Municipal & Private Facilities

MDEQ Staff presented the West Rankin Utility Authority Wastewater Treatment Facility NPDES Wastewater Permit application, but did not make a recommendation. Roy Furrh, MDEQ General Council, noted that the presentation of the permit application was not an evidentiary hearing. Representatives of the West Rankin Utility Authority and the City of Jackson made statements regarding the permit application. After the statements, the Board approved the NPDES Wastewater Permit (MS0061743) in a closed session.

OTHER BUSINESS

Roy Furrh, MDEQ General Council, stated that MDEQ is scheduling an evidentiary hearing regarding the Dry Asset Facility Holdings, LLC (Pearl River County) Permit Transfer application. The hearing will probably be held in June or July 2015.

The next Permit Board meeting will be held on May 12, 2015 at 9 a.m.

IRS Circular 230 Notice

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Sam Kelly elected as a Fellow of the Mississippi Bar Foundation

April 14, 2015 by Brunini Law

Samuel C. Kelly has been elected as a Fellow of the Mississippi Bar Foundation. He was inducted into membership at the Foundation’s recent Annual Meeting and Fellows Induction Ceremony held at the Old Capitol Inn in Jackson in April. A Fellow of the Mississippi Bar Foundation is a great honor bestowed on only a few each year. Selection as a Fellow is based not only on excellence as an attorney, but also on an attorney’s commitment to serve the Bar and the public. The Bar Foundation was organized in 1963 to improve the administration of justice. It presently administers the Interest On Lawyers Trust Accounts Program, which has awarded over eleven million dollars to public interest, law-related programs.

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Samuel C. Kelly