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Brunini Law

NLRB Issues Final Rule Altering Union Election Process

December 15, 2014 by Brunini Law

On December 12, 2014, a divided National Labor Relations Board issued and adopted a final rule amending its representation–case procedures—which drastically speeds up the union election process.  The rule will be published in the Federal Register on December 15, and will take effect on April 14, 2015.

The new rule requires businesses to postpone virtually all litigation over eligibility issues until after workers vote on whether to join the union.  The regulation also eliminates a previously-required 25-day period between the time an election is ordered and the election itself, and it requires employers to furnish union organizers with all available personal email addresses and phone numbers of workers eligible to vote in a union election.  (The NLRB’s Purple Communications’ decision handed down on December 11, 2014 essentially prohibited employers from denying union organizers access to company email.) The rule also, for the first time, allows for the electronic filing and transmission of union election petitions.

NLRB Board Chairman Mark Gaston and Members Kent Y. Hirozawa and Nancy Schiffer approved the final rule.  Board Members Philip A. Miscimarra and Harry I. Johnson III dissented.  The rule includes detailed explanations regarding the rule’s impact on current procedures and the views of the majority and dissenting members.  The regulatory shift represents a clear victory for a labor movement that has often felt taken for granted by the Obama administration, while a legal challenge from business groups is all but certain.

http://www.nlrb.gov/news-outreach/news-story/nlrb-issues-final-rule-modernize-representation-case-procedures

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Mississippi Commission on Environmental Quality Summary of Meeting Held November 20, 2014

December 1, 2014 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.

The Mississippi Commission on Environmental Quality convened at 9:00 a.m. on November 20, 2014, at the offices of the Mississippi Department of Environmental Quality in Jackson.  Chat Phillips chaired the meeting attended by all members.  The Commission approved minutes from the previous meeting held on September 25, 2014.

Following a prepared agenda, items considered were as follows:

COMMISSION APPROVAL OF BROWNFIELD CONSULTING FIRM

Trey Hess of MDEQ staff recommended approval of the following firm for listing as a Brownfield Consulting Firm:  Goodwyn, Mills and Cawood, Inc.  The Commission unanimously approved the staff recommendation.

FY 2016 TITLE V FEE RECOMMENDATION

Jerry Beasley of MDEQ presented the Title V Air Advisory Council’s recommendation for the Title V fee for FY 2016.  The Council’s recommendation is to set the fee at $41 per ton of emissions—this is unchanged from the previous year.  Mr. Beasley requested the Commission’s permission to proceed with the public notice period for the proposed FY 2016 Title V fee.  The Commission unanimously approved this request.

ADOPTION OF A REVISION TO THE STATE IMPLEMENTATION PLAN AND “REGULATIONS FOR AMBIENT AIR QUALITY NONATTAINMENT AREAS,” 11 MS ADIMINSTRATIVE CODE, PART 2, CHAPTER 11

Mr. Beasley discussed the proposed revision to the State Implementation Plan for the Control of Air Pollution (SIP Revision).  The SIP Revision includes new regulations for implementing requirements for areas non-attainment areas under the National Ambient Air Quality Standards and an emissions inventory for DeSoto County.  The Department held a public hearing on the subject amendments on October 2, 2014.  The only comments received were minor comments submitted by EPA.  The Commission unanimously approved the SIP Revision as presented by MDEQ Staff.

Gary Rikard noted that based on recent monitoring results, DeSoto County may be re-designated as attaining.  However, if EPA lowers the allowable pollutant levels, DeSoto County may remain a non-attainment area.

ADOPTION OF AMMENDMENTS TO “AIR EMISSION REGULATIONS FOR THE PREVENTION, ABATEMENT, AND CONTROL OF AIR CONTAMINANTS,” 11 MISSISSIPPI ADMINISTRATIVE CODE, PART 2, CHAPTER 1

Mr. Beasley discussed the proposed amendments to the subject air pollution control regulations.  The proposed amendments include the following items:  (1) changes to the open burning provisions allowing MDEQ to delegate the burning of residential yard waste to local governments; (2) creation of “Air Quality Action Days” in which MDEQ may prohibit burning of yard wastes and other types of proscribed burning that is normally allowed; (3) recent amendments to federal regulations for New Source Performance Standards for Hazardous Air Pollutants; and (4) recent changes to the Federal Consolidated Air Rule.

The Commission unanimously approved the proposed amendments to 11 Mississippi Administrative Code, Part 2, Chapter 1 as presented by MDEQ Staff.

CERTIFICATIONS APPROVED

  • Asbestos:                                          223 certifications
  • Lead Paint:                                          83 certifications
  • Underground Storage Tanks:            5 certifications
  • Wastewater Operator:                     113 certifications

EMERGENCY CLEAN-UP EXPENSES APPROVED

Fourteen (14) emergency clean-up expenditures occurred since the last report.

ADMINISTRATIVE ORDERS APPROVED

Eighteen (18) 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 5 $0 – $7,500
Large Construction Stormwater 1 $25,000
Asbestos Removal 1 $3,500
Gravel Mining 2 $3,500 – $18,000
Hazardous Waste 3 $6,200 – $101,382
Underground Storage Tanks 2 $5,000
Solid Waste 1 $4,000

An order accepts Kansas City Southern Railroad Vicksburg, MS for participation in the Uncontrolled Site Voluntary Evaluation Program.

An order confirms the adoption of the Water Pollution Control Revolving Fund Program Final FY 2014 Intended Use Plan Amendment I.

The next Commission meeting is scheduled for January 22, 2015.

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.

If you have any questions concerning the matters summarized in this Newsletter, please contact John Milner at jmilner@brunini.com or (601) 960-6842.

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

  • R. Richard Cirilli, Jr.
  • John E. Milner
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Mississippi Environmental Quality Permit Board Summary of Meeting Held November 4, 2014

November 5, 2014 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 Environmental Quality Permit Board (Board) convened its regular monthly meeting at 9:00 a.m. on November 4, 2014, at the offices of the Mississippi Department of Environmental Quality in Jackson.  Mr. Jim Lipe chaired the meeting.  Board members Leslie Royals and David Snodgrass were not present.  The Board approved minutes from the October meeting and all non-controversial actions/certifications by the staff since the October 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 permits to rescind.

Mr. Ron Porter of MDEQ staff explained the recommendation to rescind permits for Eutaw Construction Company, Inc. (Eutaw).  Eutaw determined that that the sites contained unsuitable material.  The sites were undisturbed, and Eutaw and no longer intends to mine the sites.

Surface Mining Permits to Rescind:

Permittee

County

Permit

Staff Recommendation

Eutaw Construction Company, Inc.

Monroe

P12-027

Rescind

Eutaw Construction Company, Inc.

Monroe

P13-016

Rescind

OTHER BUSINESS:

The Board provided updates on ongoing litigation and will provide further updates as litigation proceeds.

The City of Tupelo has appealed to the MS Supreme Court regarding the issuance of six groundwater withdrawal permits (MS-GW-17109, MS-GW-17110, MS-GW-17111, MS-GW-17112, MS-GW-17113, MS-GW-17114) issuedto North Lee County Water Association.

Chancery court affirmed a permit issued to Errington Poultry in Green County, MS.  The permit, issued by the Board, allows a variance to buffer requirements for construction of a poultry house.   A party has appealed the issuance of permit to the MS Supreme Court.

The next Permit Board meeting will be held on December 9, 2014.

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.

If you have any questions concerning the matters summarized in this Newsletter, please contact John Milner at jmilner@brunini.com or (601) 960-6842.

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

  • R. Richard Cirilli, Jr.
  • John E. Milner
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Mississippi Environmental Quality Permit Board Summary of Meeting Held October 14, 2014

October 29, 2014 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 Environmental Quality Permit Board (Board) convened its regular monthly meeting at 9:00 a.m. on  October 14, 2014, at the offices of the Mississippi Department of Environmental Quality in Jackson.  Leslie Royals, PE chaired the meeting attended by all Board members.  The Board approved minutes from the September meeting and all non-controversial actions/certifications by the staff since the September meeting.  Following a prepared agenda, items considered were as follows:

OFFICE OF GEOLOGY

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

Mr. James Matheny of MDEQ staff provided the following explanation regarding the recommendations to transfer and rescind permits for Tri-State Brick and Tile Company, Inc.  Tri-State went into bankruptcy, and Trustmark Bank took its properties. Tri-State Jackson Lands, LLC entered into a purchase agreement with Trustmark Bank to and requests to transfer the associated permits.

Surface Mining Bond Releases:

Permittee

County

Permit

MDEQ Staff Recommendation

Tanner Construction Company, Inc. Washington P10-023

100% release

Tanner Construction Company, Inc. Washington P10-024

100% release

Tanner Construction Company, Inc. Washington P10-035

100% release

Kevin Coleman Construction, Inc. Hinds P04-042

100% release

 

Surface Mining Permits to Transfer:

Permittee

County

Permit

Staff Recommendation

Johnston’s Sand and Gravel, Inc. requests a transfer to APAC-Mississippi Clarke P03-038AAT Approve transfer
Walters Development LLC., requests a transfer to Chris Albritton Construction Lauderdale P01-032T Approve transfer
Tri-State Brick and Tile Company, Inc., transfer to Tri-State Jackson Lands, LLC Hinds P11-003T Approve transfer
Tri-State Brick and Tile Company, Inc., transfer to Tri-State Jackson Lands, LLC Hinds P09-006T Approve transfer
Tri-State Brick and Tile Company, Inc., transfer to Tri-State Jackson Lands, LLC Hinds P06-008T Approve transfer
Tri-State Brick and Tile Company, Inc., transfer to Tri-State Jackson Lands, LLC Hinds P00-067AT Approve transfer
Tri-State Brick and Tile Company, Inc., transfer to Tri-State Coleman Lands, LLC Noxubee P09-008T Approve transfer

 

Surface Mining Permits to Rescind:

Permittee

County

Permit

Staff Recommendation

Tri-State Brick and Tile Company, Inc. Hinds P96-061

Release, reclamation 100% complete

Tri-State Brick and Tile Company, Inc. Hinds P98-005

Release, reclamation 100% complete

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Groundworx, LLC, Forrest and Lamar Counties:  MSU213009

The Board adopted the Findings of Fact and Conclusions of Law regarding the issuance of a State Operating Permit for Groundworx, LLC.  The permit for Groundworx was developed following an Evidentiary Hearing held on July 15, 2014.  The board had no additional questions or objections to the permit and approved the Findings of Fact and Conclusions of Law for adoption into the meeting minutes.

North Lee County Water Association, Lee County:  MS-GW-17109, MS-GW-17110, MS-GW-17111, MS-GW-17112, MS-GW-17113, MS-GW-17114

The Board adopted the Findings of Fact and Conclusions of Law for North Lee County Water Association, Lee County, MS.  After an evidentiary hearing held on August 12, 2014, MDEQ Staff proposed six groundwater withdrawal permits with special terms and conditions.  The permits were emailed to the Board members for review prior to the meeting.  The Board had no additional questions or objections to the permits and approved the Findings of Fact and Conclusions of Law for adoption into the meeting minutes.

OTHER BUSINESS

MDEQ is developing Permit Board Rules and Regulations of Practice for Evidentiary Hearings.  The Draft Rules and Regulations will be issued soon for review by publication on the MDEQ website.  In addition, MDEQ will hold a public meeting to solicit additional input on the Rules.

The next Permit Board meeting will be held on November 4, 2014. The meeting will be held on the first Tuesday in November because the second Tuesday falls on Veterans Day.

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.

If you have any questions concerning the matters summarized in this Newsletter, please contact John Milner at jmilner@brunini.com or (601) 960-6842.

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

  • R. Richard Cirilli, Jr.
  • John E. Milner
  • Gene Wasson

Mississippi Commission on Environmental Quality Summary of Meeting Held September 24, 2014

October 8, 2014 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.

The Mississippi Commission on Environmental Quality convened at 9:00 a.m. on September 24, 2014, at the offices of the Mississippi Department of Environmental Quality in Jackson. Chat Phillips chaired the meeting attended by all members.  Minutes from the previous meeting held on July 24, 2014 were approved.

The Commission welcomed Gary Rikard as the new Executive Director of MDEQ.

Following a prepared agenda, items considered were as follows:

WATER POLLUTION CONTROL REVOLVING FUND LOAN PROGRAM, AMENDMENT I

Tony Caldwell of MDEQ staff presented Amendment I of the FY-2014 Intended Use Plan.  Caldwell explained that Amendment I includes new projects approved for funding through the State Revolving Fund (SRF) Program, a low-interest loan program.  The Commission unanimously adopted Amendment I to the FY-2014 Intended Use Plan as presented by the MDEQ staff.

Amendment includes the following elements:

  1. Correction of the Priority List expiration date;
  2. Addition of new projects to the planning list for possible funding during FY-2014;
  3. Incorporation of the 204 Title VI capitalization grant allotment;
  4. Modification of FY-2014 capitalization grant and state match obligations due to the lack of adequate state match authorization during the 2014 Regular Legislative Session; and
  5. Provision for the obligation of additional repayments (through September 2016) to replace the unavailable FY-2014 capitalization grant and state match funds.

MDEQ held a 30-day public comment period and a public meeting for discussion of Amendment I.  No comments were received during the public notice or meeting.

UPDATE: HYDRAULIC FRACTURING IN MISSISSIPPI

Richard Harrell, P.E. and Kay Whittington, P.E. of MDEQ presented an update on hydraulic fracturing (hydrofracking) activities in Mississippi.  A summary of remarks follow.  If you would like to receive a copy of the MDEQ slides on this topic, please contact John Milner at jmilner@brunini.com.

MDEQ regulates several elements of hydrofracking: withdrawals of water from ground water sources; withdrawals of water from surface water sources; stormwater runoff from construction sites; discharges or treatment of wast waters; spills or releases that threaten state waters; impoundments in terms of dam safety and requirements; and air pollution.

MDEQ Staff stressed that they presently have no reports of spills/ releases associate with hydrofracking. MDEQ currently has applications for hydrofracking activities at 48 sites in Wilkinson and Amite counties.  Their current path forward includes managing water resources with conjunctive water use, monitoring and protecting groundwater and surface water levels and quality and working directly with affected communities.  MDEQ is currently developing a General Permit to expedite air permit processing times.

Conjunctive Water Use

Hydrofracking activities use large amounts of water during the initial production phase. Water use fluctuates based on type of fracturing method used, length of laterals, number of frack stages, and volume of sand used. Potential water supplies include streams and rivers, private ponds, groundwater, recycled and treated flowback water, treated municipal wastewater, and the Mississippi River.  MDEQ will balance hydrofracking water needs with their duty to protect beneficial uses of waters (i.e., recreational uses and aquatic life support), especially during the low-flow season.

MDEQ staff stated they are collecting additional data in efforts to develop methodology to determine maximum withdrawal allowable without causing adverse impact to aquatic life and surface water flow regimes.  This concept, termed with “conjunctive water use” will enable MDEQ to balance uses of surface and ground water with hydrofracking uses.

Drinking Water Protection

Continuing with the concept of conjunctive water use, MDEQ stated that no new or existing groundwater wells will be permitted for hydrofracking use that would adversely impact existing drinking uses.  Most public water supply wells in Amite and Wilkinson Counties are shallow, with the majority at depths of less than 600 ft.  The MS Department of Health has conducted baseline monitoring in public water supply wells of Amite and Wilkinson Counties.  Monitoring will continue.

Permits for Groundwater Withdrawal for Hydrofracking Use

To date, MDEQ has issued six permits for groundwater withdrawal for hydrofracking use. These wells are all below 600 feet (lower than the depth of most public water supply wells). Future withdrawal permits will carry special terms and conditions. Elements of the special terms and conditions include: field survey of wells in 1 mile radius; submission of geophysical log to MDEQ; required inspection plug and meter; required pump test required; measurement and submittal of static water levels before and after each fracking event; collection and analysis of water quality samples; and report of water use for each fracking event.

Groundwater Quality Protection

MDEQ and the MS Oil and Gas Board are jointly developing requirements for groundwater protection.  The requirements include the use of lined surface pits for storage of fresh water and flowback water and design requirements for well surface casings. MDEQ staff stated that there is a significant depth difference between public water wells (typically less than 600 feet) and well depths in the Tuscaloosa Marine Shale (approximately 12,000 feet). Additionally, staff noted that there are hundreds of feet of confinement between drinking water wells and the Tuscaloosa Marine Shale.

Municipal Infrastructure

Other concerns include the future demands to infrastructure (i.e. roads, publici water supply and municipal wastewater treatment capacities) due to expected population growth in Amite and Wilkinson Counties. MDEQ staff is actively engagign with municipalities in potentially affected areas to upgrade infrastructure in anticipation of future growth.

CERTIFICATIONS APPROVED

Asbestos:                                                         204 Certifications

Lead Paint:                                                         89 Certifications

Underground Storage Tanks:                           8 Certifications

EMERGENCY CLEAN-UP EXPENSES APPROVED

The following eight (8) emergency clean-up expenditures occurred since the last report:

Complete Environmental & Remediation (3 emergency clean-up expenses) in the counties of Winston and Lee due to clean-up of April tornadoes.

United States Environmental Services (5 emergency clean-up expenses) in the counties of Sunflower, Jackson, Copiah, Yazoo and Jefferson Davis due to diesel spill clean-up.

ADMINISTRATIVE ORDERS APPROVED

Twenty-four (24) administrative orders issued by the Executive Director and approved by the Commission included the following matters:

Program Area  Number of Orders Penalty Range
NPDES 4 $0- $25,000
Large Construction Stormwater 2 $2,500-$5,000
Lumber/ Wood Treating 3 $2,200- $15,500
Metals Manufacturing 1 $24,640
Asbestos Removal 1 $2,500
Baseline Stormwater 1 $17,500
Graval Mining 1 $8,100
Hazardous Waste 1 $8,800
Title V 1 $0

A scheduling order with Pilot Travel Centers was issued to schedule a date for the evidentiary hearing requested before the Commission.

An order approves the proposed amendment to Pine Belt Solid Waste Management Plan to expand the Randy-Danny, Inc. Rubbish Site.

An order approves the proposed amendment to Three Rivers Regional Solid Waste Management Plan to expand the TMCO Class I Rubbish Site and to add the North MS Recycling Solutions Class I Rubbish Site.

An order approves the proposed amendment to Yazoo County Waste Management Plan to add eleven new land applications for spreading of bio solids for soil amendment purposes.

An order approves the proposed amendment to Forest county Solid Waste Management Plan to add the 90 Class I Rubbish Site.

An order confirms that Kossen Properties, LLC and Empire Truck Sale of Louisiana have satisfied remediation requirements in conjunction with a Brownfield Agreement.

The remaining orders were not enforcement-oriented, but rather dealt with the approval of amendments to Title 11 (Regulations governing surface coal mining), and approval of the MS 2014 Section of 303 (d) List of Impaired Water Bodies.

The next Commission meeting is scheduled for October 23, 2014.

If you have any questions concerning the matters summarized in this Newsletter, please contact John Milner at jmilner@brunini.com or (601) 960-6842.

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Mississippi Environmental Quality Permit Board Summary of Meeting Held September 9, 2014

September 9, 2014 by Brunini Law

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 Environmental Quality Permit Board (Board) convened its regular monthly meeting at 9:00 a.m. on September 9, 2014, at the offices of the Mississippi Department of Environmental Quality in Jackson.  Leslie Royals, Permit Board Chairman, chaired the meeting attended by all Board members.  The Board approved minutes from the August meeting and all non-controversial actions/certifications by the staff since the August meeting.  Following a prepared agenda, the 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 cancel:

Surface Mining Bond Releases:

Permittee County Permit MDEQ Staff Recommendation
Baldwyn Sand & Gravel Monroe P92-098AA 30% release
Eutaw Construction Company, Inc. Monroe P93-050T 90% release
Eutaw Construction Company, Inc. Monroe P13-018 50% release
W. S. Jordan & Sons Sand and Gravel DeSoto P96-026 No release
Preston Dobbs Truck Service Monroe P02-002AAA 100% release
Krystal Gravel, Inc. Copiah P90-020 30% release
Krystal Gravel, Inc. Copiah P91-016T2 10% release
Krystal Gravel, Inc. Copiah P92-029T2 No release
Krystal Gravel, Inc. Copiah P94-067T1 No release
Krystal Gravel, Inc. Copiah P95-079 No release
Krystal Gravel, Inc. Copiah P98-003 No release
Krystal Gravel, Inc. Copiah P00-027 40% release
Krystal Gravel, Inc. Copiah P00-046T2 No release
Krystal Gravel, Inc. Copiah P01-39A 20% release
Krystal Gravel, Inc. Copiah P02-043 45% release
Krystal Gravel, Inc. Copiah P03-003T 10% release
Krystal Gravel, Inc. Copiah P13-002 20% release
Oxford Sand Company Panola P99-051 20% release
Phillips Contracting Co. Lowndes P07-026T 90% release

Surface Mining Permit to Cancel:

Permittee County Permit Staff Recommendation
U.S. Army Corps of Engineers Marshall P09-020A Cancel

The Board heard discussions from visitors and approved the following surface mining bond releases:

APAC – Mississippi, Inc. (Carroll County)

Surface Mining Permit Bond Release – P98-011TA

Mr. James Matheny of MDEQ staff stated that the Office of Geology recommended an initial 15% bond release for this 337-acre site.  After hearing discussion from visitors, the Board approved the mining bond release in accordance with the staff’s recommendation.

Visitors requested that the Board delay release until ownership of the site is settled by pending litigation and stated that APAC – Mississippi, Inc. (APAC) now owns J.J. Ferguson Sand & Gravel’s interest in this site.  Pending litigation is between the visitors and J.J. Ferguson Sand & Gravel.  A  representative of APAC argued for the recommended bond release and referenced a letter from the Carroll County School District, stating that the litigation will not have bearing on bond releases.  Roy Furrh, MDEQ General Counsel, explained that MDEQ requires bond to ensure that permittees complete reclamation.  Bonds do not affect royalty payments to parties.  Given this, Mr. Furrh recommended that the Board release the bonds in accordance with the staff’s recommendation.

J.J. Ferguson Sand & Gravel (Carroll County)

Surface Mining Permit Bond Release – P88-017

A representative from J.J. Ferguson Sand & Gravel stated that this site does not abut the visitors’ property.  Ongoing litigation with the visitors, referenced above, involves royalties and not land reclamation required for bond release.  After hearing discussion from visitors, the Board approved the bond release in accordance with the staff’s recommendation.

OFFICE OF POLLUTION CONTROL

Solid Waste and Mining Branch

Chamber of Mississippi, Inc., Clearview Environmental Control Facility Landfill (Scott County)

Reissuance of NPDES Permit – MSS059374

Reissuance of Title V Air Permit to Operate – 2420-00046

Reissuance and Modification of Wastewater Treatment Permit – MSP090465

There were no significant issues identified during the public comment period.  The Board approved the permits in accordance with the staff’s recommendation.

Construction and Building Materials Branch

McClain Lodge High Fence Project (Rankin County)

Issuance of Large Construction Stormwater Coverage – MSR106411

Issuance of 401 Water Quality Certification – WQC2014002

Florence Bass of MDEQ staff stated the project is for the construction of a 12-foot high fence to create a hunting area for native and exotic animals on a 390-acre tract in Rankin County.

The applicant addressed all off-site and on-site mitigation and restoration enhancements and paid a previously assessed a fine. Residents of the neighboring subdivision have filed letters of objection, and a public hearing was held.  At the hearing, residents raised concerns about flooding, health, and environmental quality.  A visitor (neighboring subdivision resident) stated his concerns regarding (1) the potential for water contamination due to exotic game and (2) erosion and standing water issues.  After hearing discussion from visitors, the Board approved these authorizations in accordance with the staff’s recommendation.

The next Permit Board meeting will be held on October 14, 2014.

This Newsletter is a publication of the Environmental Practice Group of the Brunini, Grantham, Grower & Hewes law firm 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.

If you have any questions concerning the matters summarized in this Newsletter, please contact John Milner at jmilner@brunini.com or (601) 960-6842.

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  • R. Richard Cirilli, Jr.
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7 Diversity Jurisdiction Questions

July 26, 2014 by Brunini Law

Below are seven questions regarding diversity jurisdiction.  The answers and supporting case law will be added soon.

  1. Case is filed in Mississippi federal court.  Texas plaintiff and Delaware plaintiff.  The four defendants are residents of Louisiana, Mississippi, Delaware, and California.  Is diversity jurisdiction present?
  2. Case is in Mississippi state court.  Mississippi plaintiff.   Alabama defendant and Mississippi defendant.  The Mississippi defendant settles and is dismissed.   Is the case removable?
  3. Case is filed in Mississippi state court.  The plaintiff and defendant are diverse.  The complaint seeks to quiet title in a $600,000 piece of property.  The complaint seeks “less than $75,000 in damages and specifically seeks $30,000 in damages and attorneys’ fees.”  Is the case removable?
  4. Case is filed in Mississippi state court.  Mississippi plaintiff.  A corporation (engaging in tire distribution) is the defendant.   The corporation has shareholders in Mississippi, Louisiana, and Alabama.  The state of incorporation is Louisiana.  The central office is in Louisiana, and the central office is where the executives work and the policy and financial decisions take place.  The tire distribution centers are in both Louisiana and Mississippi, but 80% of the tire distribution centers are in Mississippi.  The Secretary of State of Mississippi lists Jackson, Mississippi, as the principal office for the corporation.  Is the case removable?
  5. Case is filed in Mississippi state court.  Louisiana plaintiff.  The five defendants are residents of Alabama, Tennessee, Arkansas, Mississippi, and Florida.  Is the case removable?
  6. Case is in Mississippi state court.  Mississippi plaintiff.  Louisiana defendant and Mississippi defendant.  The Mississippi defendant files a motion to dismiss and is dismissed.  Is the case removable?
  7. Case is in Mississippi state court.  Mississippi plaintiff.  An LLC is the defendant.  The state of “registration” or “incorporation” for the LLC is Mississippi.  The members of the LLC are residents of Louisiana.  The executive offices for the LLC are in Mississippi.  The primary place of business or principal place of business is in Louisiana.  Is the case removable?

Check back later for the answers!

Chris Fontan, Reed Nunnelee and Sam Kelly Present to the Mississippi Road Builders Association

July 22, 2014 by Brunini Law

Chris Fontan, Sam Kelly and Reed Nunnelee presented to the Mississippi Road Builders association on Monday, July 21, 2014.  Kelly discussed a new Construction Lien Law, while Fontan and Reed discussed Employer Shared Responsibility of the Affordable Care Act.

View the presentation Affordable Care Act: Employer Shared Responsibility HERE.

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Diversity Jurisdiction Questions. Answered!

July 21, 2014 by Brunini Law

** Note: This is part two of a two-part series.

  1. Case is filed in Mississippi federal court.  Texas plaintiff and Delaware plaintiff.  The four defendants are residents of Louisiana, Mississippi, Delaware, and California.  Is diversity jurisdiction present?

No.  There is a Delaware plaintiff and a Delaware defendant.  Complete diversity is not present. KeyBank Nat. Ass’n v. Perkins Rowe Associates, L.L.C., 539 Fed. Appx. 414, 416 (5th Cir. 2013) (“28 U.S.C. § 1332(a)(1) . . . requires complete diversity between all plaintiffs and all defendants.”) (quotingLincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005)).

  1. Case is in Mississippi state court.  Mississippi plaintiff.   Alabama defendant and Mississippi defendant.  The Mississippi defendant settles and is dismissed.   Is the case removable?

Yes.  The “voluntary dismissal by a plaintiff of all defendants whose citizenship is not diverse from that of the plaintiff, through settlement or otherwise, renders the case removable by any remaining defendants whose citizenship is diverse.” Horton v. Scripto-Tokai Corp., 878 F. Supp. 902, 907 (S.D. Miss. 1995) (“So, plaintiff’s voluntary dismissal of Hawkins, the sole original non-diverse defendant, from this lawsuit transformed this case from one not proper for removal to one that met the removal prerequisite.”); see also Estate of Martineau v. ARCO Chemical Co., 203 F.3d 904, 911 (5th Cir. 2000)(holding that case was properly removed after settlement with non-diverse defendant and recognizing that “a case may be removed based on any voluntary act of the plaintiff that effectively eliminates the nondiverse defendant from the case”) (quoting Vasquez FDIC v. Abraham, 137 F.3d 264, 269 (5th Cir. 1998)).

The case must be removed within 30 days of the time the removing defendant receives a “motion, order or other paper.”  28 U.S.C. § 1446(b)(3).

  1. Case is filed in Mississippi state court.  The plaintiff and defendant are diverse.  The complaint seeks to quiet title in a $600,000 piece of property.  The complaint seeks “less than $75,000 in damages and specifically seeks $30,000 in damages and attorneys’ fees.”  Is the case removable?

Yes. “When the validity of a contract or a right to property is called into question in its entirety, the value of the property controls the amount in controversy.” Waller v. Prof’l Ins. Corp., 296 F.2d 545, 547–48 (5th Cir. 1961); see also Celestine v. TransWood, Inc., 467 Fed. Appx. 317, 319 (5th Cir. 2012) (recognizing that the “amount in controversy for jurisdictional purposes is determined by the amount of damages or the value of the property that is the subject of the action”) (citing Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 347 (1977)); see also Dillard Family Trust v. Chase Home Finance, LLC, 2011 WL 6747416, at *4 (N.D. Tex. 2011) (recognizing in a quiet title action that since the value of the property set by Dallas County was over $75,000 that the amount in controversy was satisfied); White v. BAC Home Loans Servicing, L.P., 2011 WL 3841952, at *2 (S.D. Tex. 2011) (same holding where Harris County placed a value for the property greater than $75,000).

A Complaint that states that the amount in controversy is less than $75,000 is not determinative of whether the amount in controversy threshold is in fact met.  Jackson v. Balboa Ins. Co., 590 F. Supp. 2d 825, 827-28 (S.D. Miss. 2008) (denying remand where amount in controversy was satisfied despite the allegation in plaintiff’s complaint that the “Complaint filed by the Plaintiff herein specifically states that he is not seeking monetary relief in excess of $75,000,” and finding that “[s]uch statements do not set forth a specific monetary demand.”) (citing Manguno v. Prudential Property and Cas. Ins. Co., 276 F.3d 720, 722-23 (5th Cir. 2002)).

  1. Case is filed in Mississippi state court.  Mississippi plaintiff.  A corporation (engaging in tire distribution) is the defendant.   The corporation has shareholders in Mississippi, Louisiana, and Alabama.  The state of incorporation is Louisiana.  The central office is in Louisiana, and the central office is where the executives work and the policy and financial decisions take place.  The tire distribution centers are in both Louisiana and Mississippi, but 80% of the tire distribution centers are in Mississippi.  The Secretary of State of Mississippi lists Jackson, Mississippi, as the principal office for the corporation.  Is the case removable?

Yes.  The corporation is a citizen of Louisiana because Louisiana is home to the corporation’s nerve center, and the corporation was incorporated in Louisiana. “A corporation may simultaneously be a citizen of two states, the place of incorporation and the state of its principal place of business.” Maxey v. Security-Connecticut Life Ins. Co., 2006 WL 1791151, at *2 (N.D. Miss. 2006) (citing 28 U.S.C. § 1332(c)(1)). The “nerve center” test controls the principal place of business.  Hertz Corp. v. Friend, ––– U.S. ––––, ––––, 130 S.Ct. 1181, 1192, 175 L.Ed.2d 1029 (2010) (adopting the “nerve center” test as the appropriate test for determining the principal place of business and rejecting the other tests used by numerous Circuits including the Fifth Circuit’s “total activities” test).

A corporation can have “one and only one principal place of business.”  J.A. Olson Co. v. City of Winona, Miss., 818 F.2d 401, 406 (5th Cir. 1987).  To determine the “nerve center,” one looks to “where a corporation’s officers direct, control, and coordinate the corporation’s activities.”  Hertz, 130 S.Ct. at 1192.  This location “should normally be the place where the corporation maintains its headquarters—provided that the headquarters is the actual center of direction, control, and coordination.” Id.

The fact that the corporation listed Mississippi as its principal office in corporate filings is relevant, but these filings are not outcome determinative since such filings “would create opportunities for jurisdictional manipulation” as the Supreme Court warned about such corporate filings in the Hertzdecision.  See also Teal Energy USA, Inc. v. GT, Inc., 369 F.3d 873 (5th Cir. 2004) (filings with IRS and Texas secretary of state stating the “principal place of business” were indicative of the principal place of business for diversity jurisdiction purposes, but these filings by themselves were not outcome determinative); N. California Power Agency v. AltaRock Energy, Inc., 2011 WL 2415748 (N.D. Cal. June 15, 2011) (remanding action to state court since defendant “produce[d] no evidence save a print-out from the California Secretary of State’s web site,” and defendant’s could produce no “other evidence,” then this [Secretary of State filing] has the hallmark of “jurisdictional manipulation” the Court warned of in Hertz.”); Guitar Holding Co. v. El Paso Natural Gas Co., 2010 WL 3338550 (W.D. Tex. Aug. 18, 2010) (rejecting argument that secretary of state filings constituted an admission by a party opponent since the declarations were made “for other purposes,” and although admissible as evidence, they “are amenable to rebuttal,” and “ the Supreme Court [in Hertz] has explicitly held that corporate form filings indicating a corporation’s principle office, without further explanation, are not dispositive regarding a corporation’s nerve center.”); Darrough v. LTI Trucking Services, Inc., 2012 WL 1149158 (S.D. Ill. Apr. 5, 2012) (same); etradeshow.com, Inc. v. Netopia Inc., 2004 WL 515552, at *1-2 (N.D. Tex. 2004) (“While a corporation’s statements made to a state’s secretary of state are not binding on the Court, they are relevant to its inquiry.”)

  1. Case is filed in Mississippi state court.  Louisiana plaintiff.  The five defendants are residents of Alabama, Tennessee, Arkansas, Mississippi, and Florida.  Is the case removable?

No.  The case is filed in Mississippi and there is a Mississippi defendant.  The forum defendant rule prevents removal.  A case “may not be removed if any of the parties in interest properly joined and served as defendant is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b)(2).  “This exception is commonly referred to as the forum-defendant or in-state-defendant rule.”  McGee v. Willbros Const., US, LLC, 825 F. Supp. 2d 771, 775 (S.D. Miss. 2011) (citing In re 1994 Exxon Chemical Fire, 558 F.3d 378, 391 (5th Cir. 2009)).  “It is well-settled in this circuit that the forum-defendant rule concerns not whether the district court has subject matter jurisdiction over the controversy, rather it is a procedural limitation that prevents removal of an action that would otherwise be removable on the basis of diversity jurisdiction.” Id. “As such, whether defendants to a lawsuit are diverse, or are residents of the forum state, are two separate inquiries which are treated differently for purposes of remand.”  Id.

This is a procedural rule and not a jurisdictional rule.  As a result, if the plaintiff is agreeable to the removal (and agrees to not file a motion to remand) then the removal may be allowed. Chaves v. Exxon Mobil Corp., 2007 WL 911898, at*1 (D. Conn. 2007) (“we have held that, even if removal was statutorily improper, a party opposing removal must move to remand within the 30 day limitation or the objection will be forfeited (except for objections that implicate constitutional subject matter jurisdiction such as a lack of diversity or a federal question”) see also Williams v. AC Spark Plugs Div. of Gen. Motors Corp., 985 F.2d 783 (5th Cir.1993); Air–Shields, Inc. v. Fullam, 891 F.2d 63, 65–66 (3d Cir. 1989) (finding that district court’s sua sponte decision to remand on procedural grounds more than 30 days after the filing of the notice of removal exceeded the court’s authority).

6.  Case is in Mississippi state court.  Mississippi plaintiff.  Louisiana defendant and Mississippi defendant.  The Louisiana defendant files a motion to sever and the plaintiff opposes the motion to sever.  The state court grants the motion and severs the Mississippi defendant into a separate state court case.  Can the Louisiana defendant remove?

Yes. There is “the judicially-created ‘voluntary-involuntary’ rule whereby ‘an action nonremovable when commenced may become removable thereafter only by the voluntary act of the plaintiff.’”Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 532 (5th Cir. 2006); Weems v. Louis Dreyfus Corp.,380 F.2d 545, 547 (5th Cir. 1967).  However, when a diverse state court defendant is severed then this presents an exception to the voluntary-involuntary rule and the diverse defendant can remove the case. Crockett, 436 F.3d at 533 (5th Cir. 2006) (“removal on the basis of an unappealed severance, by a state court, of claims against improperly joined defendants is not subject to the voluntary-involuntary rule. Accordingly, removal jurisdiction existed in this case upon the severance of Crockett’s claims against the nondiverse in-state health care defendants.”)

  1. Case is in Mississippi state court.  Mississippi plaintiff.  An LLC is the defendant.  The state of “registration” or “incorporation” for the LLC is Mississippi.  The members of the LLC are residents of Louisiana.  The executive offices for the LLC are in Mississippi.  The primary place of business or principal place of business is in Louisiana.  Is the case removable?

Yes.  The citizenship of an LLC is determined by the citizenship of its members.  Harvey v. Grey Wolf Drilling Co., 542 F3d 1077, 1080-81 (5th Cir. 2008) (the authorities “overwhelmingly support the position that a LLC should not be treated as a corporation for purposes of diversity jurisdiction. Rather, the citizenship of a LLC is determined by the citizenship of all of its members. Under this approach, Grey Wolf is a citizen of Nevada and Texas (the residences of its members), not Louisiana (Grey Wolf’s state of organization, resulting in complete diversity.”)

Brunini’s Lynne K. Green presents on Trust Issues

July 18, 2014 by Brunini Law

Jackson- Lynne K. Green of the Jackson office has been featured as a recent guest speaker to different organizations recently.  On July 10, she presented during a Trust Issues Seminar for the Mississippi Bankers Association.

On July 16th and 17th Lynne presented “Mississippi Uniform Trust Code Summary” during seminars for First American Title Insurance Company.  These presentations were held on the Mississippi Gulf Coast and in Flowood, Mississippi.

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