Brunini Law

Benchmark Litigation Has Recognized Eight Brunini Attorneys in its 2021 Edition

October 16, 2020 by Brunini Law

Brunini is pleased to announce the firm has been named a “highly recommended” firm in Mississippi for the 2021 Benchmark Litigation main edition and “recommended” in Mississippi in the 2020 Labor & Employment Benchmark Litigation edition. Eight attorneys were also recognized between the two editions.

Benchmark Litigation is the only attorney ranking publication in the United States to focus exclusively on litigation. The rankings are determined by a six-month research period involving extensive interviews with litigators and their clients. The annual guide identifies law firms and attorneys who display the ability to consistently handle complex, high-stakes in multiple jurisdictions, and are recommended within their respective business and legal communities for the quality of their work.

The 2021 main edition and 2020 Labor & Employment Benchmark Litigation guide includes the following Brunini attorneys:

Cody C. Bailey – Future Star
Stephen J. Carmody – Labor & Employment Star
Christopher R. Fontan – Labor & Employment Star
William “Trey” Jones, III – Labor & Employment Star and Litigation Star
David Kaufman – Litigation Star
Claire W. Ketner – Labor & Employment Star
Patrick McDowell – Litigation Star
Scott F. Singley – Labor & Employment Star

To learn more about Benchmark Litigation and Brunini, please click here.

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Mississippi Commission on Environmental Quality

October 6, 2020 by Brunini Law

Summary of Meeting Held August 27, 2020

The Mississippi Commission on Environmental Quality (“MCEQ”) convened at 9:00 a.m. on August 27, 2020. This meeting was held through a telephone conference call. The public was invited to listen to the deliberations of the Commission on the conference phone line. The Commission first approved minutes from the previous meeting held on June 25, 2020, 2020. Then, following a prepared agenda, the Commission considered items as follows:

Election of Officers for Fiscal Year 2021 (July 2020-June 2021)

The Commission re-elected the John Dane, III as Chair and Brenda Lathan as Vice-Chair.

Commission Approval of Brownfield Agreement

The MCEQ Staff recommended and the Commission approved the Brownfield Agreement between the Commission and Castle Starkville, LLC regarding the remediation of brownfield property located at 601 Highway 12 in Starkville, Mississippi. The administrative record for this environmental response project is referred to as the former Garan Manufacturing site. The proposed Brownfield Agreement Site previously operated as a clothing manufacturer and distributor. Site assessments identified the presence of asbestos containing materials. Therefore, remediation of the proposed Brownfield Agreement Site is necessary. The proposed use of the Site after completion of all remediation will be a 90,000 square foot commercial redevelopment for retail space. Commission Staff evaluated the Brownfield Agreement and believes that, with the conditions and restrictions contained within the Brownfield Agreement, the Site will be in compliance with applicable State and Federal laws and standards and will be protective of the public health and the environment. The MCEQ Staff received one inquiry during the public comment period, but no objections.

Commission Approval of Brownfield Consulting Firm

The MCEQ Staff reviewed an application from a consulting firm requesting to be listed as a Brownfield Consulting Firm and has determined it to be complete and acceptable. Staff recommended and the Commission approved the following firm as Brownfield Consulting Firm:

SEMS, Inc.

11628 S. Choctaw Drive

Baton Rouge, LA 70815

Showcase of 2020 Municipal Excellence Award Winner – City of Hernando – Reliable Equipment Brownfield Redevelopment Project

In July 2020, the City of Hernando received the Mississippi Municipal League’s 2020 Municipal Excellence Award for Planning and Economic Development, Population Over 10,000 for the public-private partnership with City of Hernando, the Mississippi Development Authority, the Mississippi Department of Environmental Quality, and Hernando Town Properties, LLC for the redevelopment of the former Reliable Equipment farm equipment maintenance facility into Uncle Bubba’s Barbecue and Social x Saint, upscale shop. Through a Brownfield Community Wide Grant by the Environmental Protection Agency (EPA) to the City of Hernando, Brownfield Agreements between MDEQ and Hernando Town Properties, LLC, and a redevelopment tax incentive between MDA and Hernando Town Properties, LLC this public-private partnership was possible. The Commission on Environmental Quality’s participation by (1) the approval of the original Brownfield Agreement application, (2) the approval of the Brownfield Corrective Action Plan, (3) the approval of the modified Brownfield Corrective Action Plan, and (4) the approval of the completion of the original Brownfield Agreement not only allowed the clean-up of petroleum contaminated soil and petroleum/lead contaminated groundwater, but also provided Hernando Town Properties, LLC the opportunity to receive tax incentives and credits from MDA to make this redevelopment possible. The Commission’s actions also allowed for reuse of the building which minimized waste disposal activities. This agenda item was for reporting purposes only and required no action by the Commission.

Water Pollution Control Revolving Loan Fund (WPCRLF) Program, Adoption of FY-2020 Intended Use Plan

The Staff recommended adoption and the Commission approved the FY-2020 Intended Use Plan. This document identifies the loan funds available to communities for the construction of wastewater infrastructure, the communities to receive these loan funds, the loan interest rate, program deadlines, and other related information. Public comments on the draft Intended Use Plan have been solicited through a public comment period and a public hearing.

Water Pollution Control Revolving Loan Fund (WPCRLF) Program, Resolution of Necessity to Issue Bonds

During the 2020 State legislative session, House Bill 1730 was passed and subsequently became law. This bill provided for the issuance of $2,830,000 in bonds to provide state matching funds required to obtain $14,150,000 in available federal assistance to this program. The funds are loaned at low interest rates to facilitate the construction or improvement of Wastewater Treatment facilities in the state. In order to initiate this process, the Commission must adopt a Resolution of Necessity for issuance of these bonds. Staff will provide copies of the Resolution to the Commission for consideration. Staff also recommend and the Commission adopted the Resolution of Necessity to Issue the Bonds.

2020 Draft Mississippi Section 303(d) List of Impaired Water Bodies

The Staff briefed the Commission on the 2020 Draft Mississippi Section 303(d) List of Impaired Water Bodies. The Commission has been provided with the document package which includes the 2020 DRAFT Mississippi 303(d) List, a copy of the public notice and the MDEQ CALM document. A public notice is scheduled to be held on September 28, 2020 to receive public comments. Staff will return to the Commission following the public notice and hearing to request the adoption of the Final 2020 303(d) list.

CERTIFICATIONS APPROVED

Asbestos: 227 certifications

Lead Paint: 109 certifications

Underground

Storage Tanks: 7 certifications

Wastewater Operator: 64

EMERGENCY CLEAN-UP EXPENSES

There were 7 emergency expenditures since the last report.

ADMINISTRATIVE ORDERS APPROVED

Twenty one (13) Administrative Orders and three (3) Amended Agreed Orders were issued by the Executive Director and approved by the Commission since the last report.

The next Commission meeting is proposed to be on September 24, 2018, at 9 a.m.

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

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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John E. Milner

Mississippi Environmental Quality Permit Board

October 6, 2020 by Brunini Law

Summary of Meeting Held August 11, 2020

The Mississippi Environmental Quality Permit Board (“Board”) convened at 9:00 a.m. on August 11, 2020. 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 July 14, 2020 and the non-controversial actions/ certifications completed by the staff since the June 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 Transfers

Permittee	County	Permit
Acme Brick to W.H. Roark Farms, LLC	Benton	P98-052TA
Louisville Brick to Bakers Ready Mix & Construction, LLC	Winston	P00-036
Consolidated AGG., LLC to Turley International Resources, LLC	Pearl River	P08-032AT
Southeastern Concrete to River Road Sand & Gravel, LLC	Forrest	P95-108

Other Business

Roy Furrh, MDEQ Legal Counsel, informed the Board Members that the Hearing Officer has not made a final decision regarding Mississippi State Port Authority – North Port Property in Harrison County and no Evidentiary Hearing has been set yet. Mr. Furrh also reminded Board Members that the evidentiary hearing regarding the All South Construction Surface Mining Bond Release approved during the May Permit Board has been scheduled for November 10, 2020.

The next Permit Board meeting will be held on September 8, 2020, 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.

Related Attorneys

John E. Milner

Mississippi Environmental Quality Permit Board

October 6, 2020 by Brunini Law

Summary of Meeting Held July 14, 2020

The Mississippi Environmental Quality Permit Board (“Board”) convened at 9:00 a.m. on July 14, 2020. 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 June 9, 2020 and the non-controversial actions/ certifications completed by the staff since the June 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 Releases

Permittee	County	Permit	Staff Recommendation
Hammet Gravel Company, Inc.	Yazoo	P05-029A	50% release

Surface Mining Transfer

Permittee	County	Permit
F&F Construction, Inc., to Gulf Breeze Construction, Inc.	Harrison	P07-035

Other Business

Roy Furrh, MDEQ Legal Counsel, informed the Board Members that an evidentiary hearing has been requested regarding the All South Construction Surface Mining Bond Release approved during the May Permit Board. It is currently scheduled for November 10, 2020. Mr. Furr reported that the Hearing Officer has not made a final decision regarding the Mississippi State Port Authority – North Port Property in Harrison County.

The next Permit Board meeting will be held on August 11, 2020, at 9 a.m.

Related Attorneys

John E. Milner

Mississippi Commission on Environmental Quality

October 6, 2020 by Brunini Law

Summary of Meeting Held June 25, 2020

The Mississippi Commission on Environmental Quality (“MCEQ”) convened at 9:00 a.m. on June 25, 2020. This meeting was held through a telephone conference call. The public was invited to listen to the deliberations of the Commission on the conference phone line. The Commission first approved minutes from the previous meeting held on May 28, 2020, 2020. Then, following a prepared agenda, the Commission considered items as follows:

Water Pollution Control Revolving Loan Fund (WPCRLF) Program Loan Interest Rate Reduction and Subsidy Eligibility Threshold Adjustment

The staff briefed the Commission on a planned reduction of the WPCRLF loan interest rates and adjustment of the subsidy eligibility thresholds for projects awarded in fiscal years FY-19, FY-20, and FY-21. These adjustments are intended 1) to help ease the economic impacts of the COVID-19 pandemic on communities needing to proceed with wastewater infrastructure projects, 2) to stimulate demand for WPCRLF loans due to the currently significant funds availability, and 3) to ensure that WPCRLF interest rates stay “below market rate” as required by federal and state law.

Certifications Approved since the last report

Type	Number
Asbestos Certifications	102 certifications
Lead Paint Certifications	31 certifications
Administrative Orders	24 Administrative Orders

The next Commission meeting will be held on August 27, 2020, at 9 a.m.

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

John E. Milner

Mississippi Commission on Environmental Quality

October 6, 2020 by Brunini Law

Summary of Meeting Held May 28, 2020

The Mississippi Commission on Environmental Quality (“MCEQ”) convened at 9:00 a.m. on May 28, 2020. This meeting was held through a telephone conference call. The public was invited to listen to the deliberations of the Commission on the conference phone line. The Commission first approved minutes from the previous meeting held on April 23, 2020. Then, following a prepared agenda, the Commission considered items as follows:

FY2021 Title V Fee Recommendation

MCEQ Staff reported that a virtual public hearing concerning the FY2021 Title V Permit Fee was held on April 9, 2020. No comments were received. Therefore, MCEQ Staff recommended that the Commission set the fee at the proposed rate of $47.00 per ton of regulated air pollutants, which is the same as the previous year’s fee. The Commission approved MCEQ Staff’s recommendation.

Commission Approval of Brownfield Agreement Completion

MCEQ Staff reported that the Commission reached a Brownfield Agreement (#6624-16) on February 26, 2016, with Stark Alan, LLC for the remediation of the Sunsations property located at 335 Hwy 12 in Starkville, Ms. On April 14, 2020, and in accordance with Rule 2.1.7.B of Part 3, Chapter 2: Final Regulations Governing Brownfield Voluntary Cleanup and Redevelopment in Mississippi, Stark Alan, LLC sent a petition to the Commission to make a determination as to the completion of Brownfield Agreement and as to the issuance of a “no further action” letter by the Executive Director. The MCEQ Staff has reviewed the petition, has conducted the required inspection of the Brownfield Agreement Site, and recommended that the Commission issue an order in accordance with the Brownfield Regulations concluding that Stark Alan, LLC has completed Brownfield Agreement #6624-16. The Commission approved the Brownfield Agreement Completion and the issuance of the no further action letter.

Commission Approval of Brownfield Agreement Completion

MCEQ Staff reported that the Commission reached a Brownfield Agreement (#6181-12) on October 1, 2012 with The Colle Company for the remediation of the Former Colle Towing Company property located at 3802 Port River Road in Pascagoula, Jackson County, Mississippi. This Brownfield Agreement required the adherence to the MDEQ approved Correction Action Plan, dated April 4, 2012. With the recording of an Environmental Covenant on this property on April 21, 2020, and after reviewing the Corrective Action Plan-Construction Report, it has been determined that all requirements set forth within the Brownfield Agreement (#6181-12) have been completed. Therefore, the MCEQ Staff hereby recommended that the Commission issue an order in accordance with the Brownfield Regulations concluding that Brownfield Agreement (#6181-12) has been completed and that a “no further action” letter be issued by the Executive Director. The Commission approved the Brownfield Agreement Completion and the issuance of the no further action letter.

Commission Approval of Brownfield Consulting Firm

MCEQ Staff reported that they had reviewed an application from a consulting firm requesting to be listed as a Brownfield Consulting Firm and determined it to be complete and acceptable. Therefore, MCEQ Staff recommended and the Commission approved the following firm as Brownfield Consulting Firm:

Leeaf Environmental, LLC

2301 Whitney Ave

Gretna, LA 70056

Certifications Approved since the last report

Type	Number
Asbestos Certifications	457 certifications
Lead Paint Certifications	160 certifications
Underground Storage Tanks (UST) Certifications	9 certifications to those who install, alter, or remove underground storage tanks
Wastewater Operator Certifications	10
Emergency Clean-Up Expenses	6

Administrative Orders

Administrative Orders will be reflected on next month’s Commission meeting agenda.

The next Commission meeting will be held on June 25, 2020, at 9 a.m.

IRS Circular 230 Notice

Related Attorneys

John E. Milner

BRUNINI WELCOMES MAGGIE K. DUFF

September 25, 2020 by Brunini Law

Maggie Duff has joined Brunini, Grantham, Grower & Hewes in August of 2020 as an associate in the firm’s civil litigation department. Her practice focuses primarily in commercial litigation, personal injury and mass tort liability and labor and employment.

Maggie received her Juris Doctor from the University of Mississippi School of Law in 2020. Prior to attending law school, she received her Bachelor of Arts in Communications with an emphasis in Public Relation at Mississippi State University in 2016.

In law school, Maggie served as a Senior Articles Editor of the Mississippi Sports Law Review. Maggie was also a member of the Business Law Network and Student Bar Association. Maggie has volunteered for federal and local campaigns and also served in U.S. Congressman Steven Palazzo’s office in Washington, D.C. Maggie was a member of the Stennis Program for Congressional Interns nominated by Congressman’s Palazzo’s office. Additionally, during her time in law school, Maggie was a legal intern for the Mississippi Attorney General’s Office.

Sam Kelly, Managing Partner of the Brunini firm said, “We are excited to welcome Maggie to the Firm and are confident that she will be a wonderful asset to our team.”

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Maggie Duff West

A CIRCUIT SPLIT ON TITLE V PERMITS UNDER THE CLEAN AIR ACT

August 24, 2020 by Brunini Law

A split has formed between the United States Courts of Appeals for the Fifth and Tenth Circuits over requirements applicable to obtaining Title V permits pursuant to the Clean Air Act, 42 U.S.C. § 7401 et seq. (“the Act”). See Environmental Integrity Project v. EPA, —F.3d—, 2020 WL 4686995 (5th Cir. Aug. 13, 2020); Sierra Club v. EPA, 964 F.3d 882 (10th Cir. 2020).

The foundation for the disputes in both cases was the propriety of the past issuance of preconstruction permits, i.e., New Source Review (“NSR”) permits, which are issued pursuant to Title 1 of the Act. NSR permits must be obtained before building a new facility or modifying an old one, and they are issued by states through vehicles called “state implementation plans” (“SIPs”). A state must provide notice and an opportunity to comment before a preconstruction permit is granted. See 40 C.F.R. § 51.161(a).

The requirements of a NSR permit differ substantially depending upon whether the new source is deemed a “major source” or “minor source.” If “major,” then the review for a NSR permit and the requirements that must be met are detailed and difficult. If “minor,” then the bar is considerably lower. As a result, this designation is important to interested parties.

This is where Title V becomes important. Title V permits were added to the Act in 1990, well after the introduction of NSR permits in 1977. The purpose of Title V permits is to provide each source with a single permit that contains and consolidates all information needed to comply with the Act without imposing new substantive requirements, and they must be renewed every five years.

The permit must contain:

“enforceable emission limitations and standards, a schedule of compliance, a requirement that the permittee submit to the permitting authority, no less often than every 6 months, the results of any required monitoring, and such other conditions as are necessary to assure compliance with applicable requirements of this chapter, including the requirements of the applicable implementation plan.”

§ 7661c(a) (emphasis added).

The split concerns the meaning of “applicable requirements” when a Title V permit or renewal is sought after, sometimes even years after, having obtained a Title 1 permit. How are the Title 1 requirements incorporated into the Title V permit?

One interpretation is that “applicable requirements” means a Title V permit must incorporate all of the requirements in the previously granted Title 1 permit, but nothing more. Another is that it must include all of the requirements of the SIP, and not simply the requirements contained in the permit, and this means it includes the requirements for major NSR. See 42 U.S.C. §§ 7410(a)(2)(c), 7471, 7502(c)(5).

The difference in this interpretation is enormous. Under the former, a court only determines whether the Title V permit incorporates the requirements contained in the Title I permit as issued. Under the latter, a court can second-guess the issuance of the type of preconstruction permit, i.e., major or minor, at a later point in time.

The difficulty faced by the Fifth and Tenth Circuits is that § 7661c(a) does not define “applicable requirements.” The Tenth Circuit resolved this issue by looking to the definition of this term in 40 C.F.R. § 70.2, the regulation that implements § 7661c(a). Section 70.2 provides, in relevant part:

“Applicable requirement means all of the following as they apply to emissions units in a part 70 source…

(1) Any standard or other requirement provided for in the applicable implementation plan approved or promulgated by EPA through rulemaking under title I of the Act that implements the relevant requirements of the Act, including any revisions to that plan promulgated in part 52 of this chapter”

The Tenth Circuit reasoned “the applicable implementation plan” includes SIPs, and SIPs require major NSR.

The Fifth Circuit, by contrast, discussed (among other factors) the lack of a definition provided in the statute, legal authority indicating Title V does not impose new substantive requirements, and the EPA’s view before enacting § 70.2 that “the intent of [T]itle V is not to second-guess the results of any State’s NSR program.” Environmental Integrity Project, 2020 WL 4686995 at *3. It recognized that preconstruction permits are already subject to a notice and comment period and approval by the EPA, and adopting the petitioner’s view (the view adopted by the Tenth Circuit) could “make Title V a vehicle for the public to (again) challenge preconstruction permits” because it makes possible re-examining the substantive validity of underlying Title I preconstruction permits. Id. at 10. To private and other interested parties, this injects uncertainty in the permitting process because there is, resultantly, no finality to a permitting decision. A preconstruction permit issued in Year 1 could be re-litigated in Year 15 upon renewal of a Title V permit.

The Fifth Circuit decision is binding in Louisiana, Mississippi, and Texas, while the Tenth Circuit’s is binding in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. It is possible the split will not be resolved until the United States Supreme Court addresses the issue. However, because the Fifth Circuit rested its decision on the EPA’s interpretation of a statute, i.e., § 7661c(a), and the Tenth Circuit rested its decision on the EPA’s interpretation of a regulation, i.e., § 70.2, it is also possible the Fifth Circuit could revisit the issue and reframe its approach if future arguments raised before the court focus more closely on the EPA’s interpretation of § 70.2. Foundation for this suggestion can be seen in footnote 6 of the Fifth Circuit’s opinion.

IRS extends deadlines for additional returns and payments.

April 13, 2020 by Brunini Law

In IRS Notice 2020-23 the IRS provides a list of additional returns and payments of tax that are due on or after April 1, 2020 for which filing and payment relief is provided. The listed payment obligations and return filings are now due on July 15, 2020.

IRS extends deadline for filing applications to carryback NOLs arising in 2018 and 2019.

The CARES Act contained provisions amending IRC Section 172(b)(1) to carry back any NOL arising in tax years beginning after December 31, 2017, and before January 1, 2021, to each of the five taxable years preceding the tax year of the NOL. However, the CARES Act did not amend the law extending the time for taxpayers realizing NOLs to apply for a tentative carryback adjustment of the tax liability in the carryback year and accelerate the refund of any resulting overpayments. In its Notice 2020-26, the IRS announced that it will grant a six-month extension of time to file a request for tentative carryback adjustment on Form 1045 or Form 1139 for an NOL arising in a taxable year that began during calendar year 2018 and that ended on or before June 30, 2019. These forms must now be filed by June 30, 2020. IRS Notice 2020-26.

IRS provides additional guidance regarding NOL carrybacks under the CARES Act.

The IRS has issued a Revenue Procedure providing additional guidance for net operating losses arising in 2018, 2019 and 2020. Under the CARES Act, such net operating losses may be carried back to the five taxable years immediately preceding the year of the loss. The Revenue Procedure addresses taxpayer elections to forego the carryback period, elections related to years in which foreign income is included in the taxpayer’s income under I.R.C. Section 965 and taxpayer options for net operating losses in tax years beginning before January 1, 2018, and ending after December 31, 2017. Rev. Proc 2020-24, 2020-17 IRB.

IRS Allows Partnerships to Claim CARES Act Benefits via Amended Returns

April 9, 2020 by Brunini Law

Under the centralized audit procedures for partnerships enacted by Congress in 2015, partnerships generally may not file amended returns without express authorization of the IRS. To enable partnerships and partners to take advantage of certain retroactive law changes under the CARES Act, the IRS has issued its Revenue Procedure 2020-23 allowing partnerships that filed a Form 1065 and furnished all required Schedules K-1 for taxable years beginning in 2018 or 2019 before the date of the revenue procedure may file amended partnership returns and furnish corresponding Schedules K-1 to its partners before September 30, 2020. Rev. Proc. 2020-23, 2020-18 IRB (April 8, 2020).