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Mississippi Environmental Quality Permit Board

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Summary of Meeting Held February 8, 2022

Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Environmental Quality Permit Board (“Board”) convened at 9:00 a.m. on February 8, 2022.  This meeting was held through a telephone conference call and the public was invited to listen to the deliberations of the Board. The Board first approved minutes from the previous meeting held on January 11, 2022 and the non-controversial actions/certifications completed by the staff since the January meeting. Then, following a prepared agenda, the Board considered items as follows:

OFFICE OF GEOLOGY

Ron Porter (MDEQ Office of Geology, Mining and Reclamation) presented the MDEQ Staff’s recommendations and Board approved the following:

Surface Mining Bond Release

Permittee County Permit Staff Recommendation
Joe McGee Construction Company, Inc. Newton P10-022 Final 80%
Joe McGee Construction Company, Inc. Rankin P18-14 Initial 70%
Oddee Smith Construction, Inc. Lincoln P08-029 Additional 30%
Parker Sand & Gravel Lowndes P17-002 Initial 90%

 

James Matheny (MDEQ Office of Geology, Mining and Reclamation) presented the MDEQ Staff’s recommendations and Board approved the following:

 

Surface Coal Mining Bond Release

Permittee County Permit
Liberty Fuels Kemper MS-003

 

Other Business

Roy Furrh, MDEQ Chief Counsel, reminded the Permit Board members that they need to complete their annual compliance forms; statement of economic interest forms and EPA conflict forms.

Mr. Furrh noted that he has sent a copy of Gold Coast Commodities, Inc.’s revocation to the Board.

Next, Mr. Furrh informed the Board that the parties involved in the Jimmy Le d/b/a Le Poultry application have voluntarily dismissed the appeal and that Jimmy Le d/b/a Le Poultry has sold the property.

Finally, Mr. Furrh briefly discussed Senate Bill 2087 (Open meetings law for public bodies; require all official meetings to be broadcast via video livestream applications).  This Bill was introduced by Senator Boyd would affect the Board if it passes.

The next Permit Board meeting will be held on March 8, 2022, at 9 a.m.

This Newsletter is a publication of the Environmental Practice Group 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 content of a newsletter, or if you 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.

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Mississippi Enacts New Medical Marijuana Law

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By:  Kyle Williams and Chris Fontan

After months of political maneuvering, including a state-wide ballot initiative and Supreme Court challenge, Mississippi has joined 36 other states in enacting its own medical marijuana program.  On February 2, 2022, Governor Tate Reeves signed Senate Bill 2095, the Mississippi Medical Cannabis Act, (the “Act”) into law. The Act regulates the cultivation, processing, and dispensing of medical cannabis and authorizes physicians, certified nurse practitioners, physician’s assistants, and optometrists to certify patients for cannabis use—up to three ounces per month—to treat numerous “debilitating medical conditions.”

The Mississippi Department of Health will administer the program outlined within the Act and will enact regulations governing medical cannabis cultivators, processors, transporters, medical practitioners, and testing and research facilities. The Act tasks the Department of Revenue with regulating and licensure of cannabis dispensaries.

As more Mississippians are issued “written certifications” to obtain and use medical cannabis, employers will be forced to navigate this emerging area of the law.  As written, the Act contains many provisions favorable for the state’s employers.  For example, the 445-page Act in no way prohibits or limits an employer’s ability to establish or enforce a drug testing policy, nor does it require an employer to allow or accommodate the use of medical cannabis or to modify any job or working conditions of any employee who engages in the use of medical cannabis.  More specifically:

  • Employers are not prohibited from refusing to hire, discharging, disciplining, or otherwise taking adverse employment action against an individual with respect to terms, conditions, or privileges of employment as a result of that individual’s medical use of medical cannabis—regardless of the individual’s impairment or lack of impairment resulting from the medical use of medical cannabis.
  • Similarly, the Act does not create a private right of action by an employee against an employer for refusing to hire, discharging, disciplining or otherwise taking an adverse employment action against that employee with respect to terms, conditions or privileges or employment due to the individual’s medical use of medical cannabis.
  • Employers may discipline employees who use medical cannabis in the workplace or who work while under the influence of medical cannabis.

However, employers must comply with other state and federal laws that might be implicated.

The Act also amends Mississippi’s workers’ compensation laws to account for medical cannabis use.  Notably, the Act does not affect, alter or otherwise impact the workers’ compensation premium discount available to employers who establish a drug-free workplace program in accordance with Miss. Code §§ 71-3-201 et seq.  In addition, the Act does not impact an employer’s right to deny or establish legal defenses to the payment of workers’ compensation benefits to an employee on the basis of a positive drug test or refusal to submit to or cooperate with a drug test, as provided under Miss. Code §§ 71-3-7 and 71-3-121.

We will continue to monitor the implementation of Mississippi’s new medical cannabis program and the forthcoming regulations being promulgated by the Departments of Health and Revenue.  If you need Labor & Employment counsel, please contact any member of Brunini’s Labor & Employment Practice Group.

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U.S. Supreme Court Clears Way for CMS’s Mandatory-Vaccination Rule to Proceed

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By: Claire Williams and Chris Fontan

On January 13, 2022—the same day that it blocked a Vaccination-or-Testing mandate issued by the Occupational Safety and Health Administration (“OSHA”)—the U.S. Supreme Court cleared the way for enforcement by the Centers for Medicare & Medicaid Services (“CMS”) of its rule requiring COVID-19 vaccinations for more than 10 million healthcare workers.

In a 5-4 opinion, the Court lifted two previous injunctions blocking CMS’s rule that was issued in November 2021 by the Secretary of Health and Human Services (“HHS”). The CMS Rule provides that, in order to receive Medicare and Medicaid funding, participating healthcare facilities must ensure that their staff are fully vaccinated against COVID-19, unless otherwise exempt for medical or religious reasons.  A facility’s failure to comply with the CMS Rule can lead to monetary penalties, denial of payment for new admissions, and ultimately termination of participation in the Medicaid and Medicare programs.

In its per curiam opinion, the Court held that that the CMS Rule falls within the authorities that Congress conferred upon the HHS Secretary.  In so holding, the Court stated that “the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID-19.” Justice Thomas authored a dissenting opinion, which was joined by Justices Alito, Gorsuch, and Barrett.

With the injunctions lifted, covered healthcare facilities need to ensure they are in compliance with the CMS Rule, including CMS’s most recent guidance. Most pressingly, covered healthcare workers must have at least one COVID-19 vaccine by January 27, and a second vaccine by February 28.

Notably, the Court’s opinion is on the district court injunctions, and not on the merits of each case.  Two separate court challenges to the CMS vaccine mandate remain.  With its ruling, the Supreme Court stayed the earlier injunctions pending disposition of the appeals in the United States Courts of Appeals for the Eight and Fifth Circuit.

We are monitoring these events and will update you accordingly.  In the meantime, feel free to contact any member of Brunini’s Labor & Employment Practice Group if you wish to discuss.

 

 

 

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U.S. Supreme Court Blocks OSHA’s Vaccine-or-Test Rule for Large Employers

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By: Claire Williams and Chris Fontan

On January 13, 2022, the Supreme Court of the United States re-instated a nationwide stay of the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”).  The Court’s stay of OSHA’s ETS prevents OSHA from enforcing the standard, which officially went into effect on January 10, 2022.

In a per curiam opinion, the Court held that emergency relief from the ETS is warranted because the applicants, including 27 states, are likely to prevail on their argument that OSHA’s ETS exceeds its statutory authority and is unlawful.  The Court reasoned that “[a]lthough Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.”  The Court went on to state that “requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

Justice Gorsuch authored a concurring opinion, which was joined by Justices Thomas, and Alito.  Justices Breyer, Sotomayor and Kagan dissented.

The Supreme Court’s stay remains in place pending further litigation and a ruling on the merits of the petitions for review in the United States Court of Appeals for the Sixth Circuit.  However, given the limited shelf-life of the ETS itself and the language used by the majority of the Justices, many feel that the Supreme Court’s decision on the stay ultimately seals the fate of the ETS.   We are monitoring these events and will update you accordingly.  In the meantime, feel free to contact any member of Brunini’s Labor & Employment Practice Group if you wish to discuss.

 

 

 

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Mississippi Environmental Quality Permit Board Summary of Meeting Held January 11, 2022

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Environmental Quality Permit Board (“Board”) convened at 9:00 a.m. on January 11, 2022.  This meeting was held through a telephone conference call and the public was invited to listen to the deliberations of the Board. The Board first approved minutes from the previous meeting held on December 14, 2021 and the non-controversial actions/certifications completed by the staff since the December meeting. Then, following a prepared agenda, the Board considered items as follows:

OFFICE OF GEOLOGY

Ron Porter (MDEQ Office of Geology, Mining and Reclamation) presented the MDEQ Staff’s recommendations and Board approved the following:

Surface Mining Bond Release

Permittee County Permit Staff Recommendation
Wet Mine Assets Holding, LLC Hancock P04-008AT Additional 10%
WG Yates & Sons Construction Jackson P87-045T Final 20%

 Other Business

Roy Furrh, MDEQ Chief Counsel, reminded the Permit Board members that they need to complete their annual compliance forms; statement of economic interest forms and EPA conflict forms.

Mr. Furrh also stated that the February 8, 2022 Permit Board Meeting will probably be in person.

The next Permit Board meeting will be held on February 8, 2022, at 9 a.m.

This Newsletter is a publication of the Environmental Practice Group 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 content of a newsletter, or if you 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.

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U.S. Supreme Court Hears Oral Argument on OSHA’s Vaccine-or-Test Rule for Large Employers

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By: Chris Fontan

In a rather unprecedented proceeding, all nine justices of the U.S. Supreme Court heard oral arguments on Friday, January 7, 2022 concerning legal challenges to the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”).  Specifically, challengers comprised of private entities and state attorneys general argue that OSHA overstepped its statutory authority when it issued the ETS requiring employers with at least 100 employees to mandate either vaccinations, or masking and weekly testing for workers.

As previously reported, a three-judge panel of the United States Court of Appeals for the Sixth Circuit previously dissolved a stay of the ETS, allowing OSHA to proceed with enforcement of the ETS’ mandates.  Within several hours of that decision, multiple parties, including 27 states, filed emergency motions with the Supreme Court seeking to block the ETS and requesting an emergency stay of its enforcement.  Justice Brett Kavanaugh took the rather unprecedented action of not unilaterally deciding the immediate stay issue himself, but instead referring this stay request to the full Court.

While it is always dangerous to predict the actions of the Court based solely on the questions asked during oral argument, many legal commentators initially speculate that the conservative majority of the Court seems primed to ultimately enjoin the ETS on the basis that it is too broad and not clearly authorized by Congress.  Decisions in the cases are expected soon, perhaps as early as over the weekend or by Monday, January 10. Timing is, of course, important as the first requirements of the ETS—everything but the weekly testing requirements—are set to take effect Monday, January 10, unless the Court acts before then to block them. The remaining testing requirements are slated to take effect Wednesday, February 9, 2022.

We are monitoring these events and will keep you posted.  In the meantime, feel free to contact any member of Brunini’s Labor & Employment Practice Group if you wish to discuss.

 

 

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Attorney Matt Allen Receives Ph.D from The University of Southern Mississippi

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Brunini Law Firm congratulates Matt Allen for receiving his Ph.D in Criminal Justice from the University of Southern Mississippi.  He has practiced law with the firm since 2005.

A Ph.D in criminal justice requires years of in-depth study and knowledge of all facets of the criminal justice system, from law enforcement to courts to corrections, as well as a dissertation on a chosen topic of focus. Matt’s dissertation was entitled Obstacles to the Implementation of Criminal Justice Reform, and it focused on barriers to the implementation of reform legislation that has already been enacted into state law by the Mississippi State Legislature.

“Matt is a super bright, hard-working attorney who holds strong and honorable convictions about making his community a better place to live and work,” said Cody Bailey, Department Chairman. “He will no doubt use his doctorate in criminal justice to that end, and we look forward to seeing all the good he will accomplish.”

Prior to joining Brunini Law Firm, Allen clerked for the Honorable William H. Barbour, Jr. of the United States District Court for the Southern District of Mississippi.

 

For more information contact: Elizabeth Tyler, Marketing

etyler@brunini.com

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UPDATE: Federal Appeals Court Lifts Stay on OSHA’s Vaccine-or-Test Rule for Large Employers

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By:  Chris Fontan

Late Friday, December 17, 2021, a three judge panel of the Sixth Circuit Court of Appeals dissolved a previously issued stay of the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”).  Shortly after the ruling by the Sixth Circuit, OSHA posted a notice on its website, adjusting its previously established deadlines for compliance with the ETS.

In a 2-1 split vote, the three judge panel determined that, in light of the continued spread of COVID-19 variants, OSHA “must be able to respond to dangers as they evolve.” Judge Jane B. Stanch, an appointee President Barack Obama, authored the opinion. Judge Julia Smith Gibbons, an appointee of President George W. Bush, sided with Judge Stanch.  Judge Joan Larsen, an appointee of President Donald Trump, dissented, noting employees are exposed to COVID-19 even while not working and OSHA had not established there was “grave danger” in the workplace or the ETS requirements would correct that.

OSHA quickly recognized the victory, while at the same time acknowledging the uncertainty that the litigation has caused. As a result, OSHA notified the public of new compliance dates concerning the ETS.  According to a new notice on the agency’s website, OSHA announced that it was “exercising enforcement discretion with respect to the compliance dates of the” mandate. OSHA stated that “it will not issue citations for noncompliance with any requirements of the [mandate] before January 10 and will not issue citations for noncompliance with the [mandate’s] testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” OSHA also promised to “work closely with the regulated community to provide compliance assistance.”

Based on this announcement, the current deadlines for the OSHA ETS include:

  • Immediately: Covered employers must start taking good faith efforts to come into compliance with the ETS.
  • January 10, 2022: New deadline for covered employers to:
    • Have written COVID-19 Vaccine-or-Testing Policy prepared describing the requirements with regard to vaccinations and testing
    • Provide specific information about vaccines and the ETS requirements to employees
    • Determine the vaccination status of each employee (and keeping records related to vaccination status)
    • Start requiring masking of unvaccinated employees
    • Provide PTO for employees to get vaccinated
  • February 9, 2022: New deadline for covered employers to:
    • Start requiring weekly COVID-19 testing for unvaccinated employees (and keeping records related to weekly testing)

Within several hours of the decision, multiple parties, including 27 states, filed emergency motions with the U.S. Supreme Court to block the ETS and requested an emergency stay of its enforcement. Those applications will be reviewed by Justice Brett Kavanaugh, who is assigned to hear petitions from the Sixth Circuit Court of Appeals. At this point, the Supreme Court has several options, including: granting the petitioners’ applications and staying the ETS pending review of the entire Court; granting the petitioners’ application but, given OSHA’s decision to delay compliance dates, not issuing a stay and simply referring the applications to the full Court for a decision; or taking no action on the applications pending review of the full Court.

Although it is always difficult to predict how quickly a ruling might come, experts predict that the Supreme Court will most likely take action in advance of January 10, 2022, to give employers some certainty. Employers are encouraged to continue to monitor developments with the ETS and pending litigation involving its implementation and to contact their labor and employment counsel for additional information concerning these developments.  If you need Labor & Employment counsel, please contact any member of Brunini’s Labor & Employment Practice Group.

 

 

 

 

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Brunini Law Firm announces that Kyle Williams has rejoined the firm as an Associate in the Firm’s Regulatory Department.

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December 13, 2021

Brunini Law Firm announces that Kyle Williams has rejoined the firm as an Associate in the Firm’s Regulatory Department.

Prior to rejoining the firm, Kyle worked in the office of Mississippi Attorney General Lynn Fitch, as the Director of Legislative Affairs and Policy and, later, Director of the Attorney General’s Opinions and Policy Division. In his roles, Kyle served as the Attorney General’s liaison to the Mississippi Legislature, advising her on matters pending before the Legislature and advocating on behalf of her legislative and budgetary priorities.  He also worked closely with county boards of supervisors, mayors, and municipal governing authorities seeking legal guidance by official Attorney General’s opinion.

“We are excited to welcome Kyle back to our firm,” said Jim Halford, chair of Brunini’s Regulatory Department. “His commercial litigation and governmental relations work with us before was exemplary. Kyle’s experience then, coupled with that gained in his recent work as the Director of the Opinions and Policy Division of the Mississippi Attorney General’s Office, will certainly strengthen our firm and greatly benefit our clients.”

A native of Meridian, Kyle received a Bachelor of Arts degree in Political Science, with a minor in Campaigns and Elections, from the University of Southern Mississippi.  He earned a Juris Doctor from the University of Mississippi School of Law, where he served as an Associate Articles Editor for the Mississippi Law Journal.

Prior to attending law school, Kyle worked as a Policy Assistant at the Mississippi House of Representatives, in the Office of Speaker Philip Gunn.  In addition to working on various federal, state, and local campaigns, he also served in the Washington, D.C. office of U.S. Congressman Steven Palazzo.

Kyle serves on the Board of Directors of both the Mississippi Bar Young Lawyers Division and the University of Mississippi School of Law Alumni Chapter, and he is the Chair of the Young Lawyers Division’s Bar Admissions Ceremony Committee. Kyle is a member of Pinelake Church, the Capital Area Bar Association, and Jackson Young Lawyers.

 

 

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Mississippi Environmental Quality Permit Board Summary of Meeting Held November 9, 2021

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Environmental Quality Permit Board (“Board”) convened at 9:00 a.m. on November 9, 2021.  This meeting was held through a telephone conference call and the public was invited to listen to the deliberations of the Board. The Board first approved minutes from the previous meeting held on October 12, 2021 and the non-controversial actions/certifications completed by the staff since the October meeting. Then, following a prepared agenda, the Board considered items as follows:

OFFICE OF GEOLOGY

Ron Porter (MDEQ Office of Geology, Mining and Reclamation) presented the MDEQ Staff’s recommendations and Board approved the following:

Surface Mining Bond Release

Permittee County Permit Staff Recommendation
Blain Sand & Gravel, Inc. Covington P98-010 Additional 80%

 

Surface Mining Permit Rescission

Permittee County Permit
PMH, LLC Marshall P10-030

Surface Mining Permit Transfer

Permittee County Permit
Blain Sand & Gravel, Inc. to JLMB Investments, LLC Covington P98-010

Other Business

No Other Business was discussed.

The next Permit Board meeting will be held on December 14, 2021, at 9 a.m.

This Newsletter is a publication of the Environmental Practice Group 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 content of a newsletter, or if you 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.

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