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Summary of Meeting Held April 23, 2020

The Mississippi Commission on Environmental Quality (“MCEQ”) convened at 9:00 a.m. on April 23, 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 February 27. 2020. Then, following a prepared agenda, the Commission considered items as follows:

FY 2021 Underground Storage Tank Fee Recommendation

A public comment period concerning the FY2021 Underground Storage Tank (UST) Fee was held between February 12 through March 12, 2020 with the public notice information distributed to the Mississippi Petroleum Marketers and Convenience Store Association. No comments were received. Staff recommended and the Commission approved to set the fee at the proposed rate of $150.00 per UST, which is an increase of $50 from last year’s tank fee. The tank fee has been set at $100 per UST since 1998.

Environmental Covenant for Southland Oil Yazoo Bulk Plant

Pursuant to the Commission’s delegation regulations (11 Miss. Admin. Code Pt. 1, R.1.1.Y.), the Interim Executive Director of MDEQ approved the Environmental Covenants between the Commission and Comet Street, LLC regarding the remediation of a former bulk plant located at 1184 Rialto Road in Yazoo City, Mississippi. The site operated as a bulk storage plant for diesel fuel and gasoline. Site assessments have revealed release(s) of diesel fuel and gasoline contaminating soils and groundwater at concentrations in excess of Target Remediation Goals. Remedial actions included the installation of a dual phase extraction system in 2006 and soil excavation in 2013. The staff of the MDEQ has evaluated the proposed Environmental Covenant and believes that, with the conditions and restrictions contained within; the site will be in compliance with applicable State laws and standards and will be protective of the public health and the environment. This agenda item is for reporting purposes only.

The next Commission meeting will be held on May 28, 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.

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

Summary of Meeting Held April 14, 2020

The Mississippi Environmental Quality Permit Board (“Board”) convened at 9:00 a.m. on April 14, 2020.  This meeting was held through a telephone conference call.  The public was invited to listen to the deliberations of the Board on the conference phone line.  The Board first approved minutes from the previous meeting held on March 10, 2020 and the non-controversial actions/ certifications completed by the staff since the March meeting. Then, following a prepared agenda, the Board considered items as follows:

OFFICE OF GEOLOGY

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

Surface Mining Bond Releases

Other Business

Roy Furrh, MDEQ Legal Counsel, informed the Board Members that the evidentiary hearing regarding Mississippi State Port Authority – North Port Property in Harrison County, scheduled for May 12, 2020, has been postponed and will be rescheduled. Steve Ray will be the hearing officer.

Mr. Furrh also reminded the Permit Board members that they need to complete their annual compliance forms and statement of economic interest forms and turn in their Designee Letters.

Mr. Furrh also discussed the upcoming May 12, 2020 Board meeting and stated that there are agenda items for which they expect persons to oppose Permit Board approval for these items.  Mr. Furrh stated that holding the meeting via Zoom or WebEx is being considered in order to allow all interested persons to address the Board in an easier manner. MDEQ will announce the meeting format at a later date.

The next Permit Board meeting will be held on May 12, 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.

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.

On March 26, 2020, U.S. EPA (EPA) announced a sweeping policy for relaxation of EPA enforcement of environmental non-compliance resulting from the COVID-19 pandemic (“COVID Enforcement Policy” or “Policy”).  The Policy applies retroactively beginning on March 13, 2020.  The expansive scope of the Policy’s enforcement relaxation discretion is widely perceived as being unprecedented in EPA history.  The full text of the EPA Policy memorandum is available at: https://www.epa.gov/sites/production/files/202003/documents/oecamemooncovid19implications.pdf.

Policy “General Conditions”

If compliance is not “reasonably practicable” due to COVID-19, facilities with environmental compliance obligations should satisfy the following Policy “general conditions” in order for EPA to exercise its enforcement relaxation discretion (“General Conditions”):

• Minimize the effects and duration of any non-compliance caused by COVID-19;
• Identify the specific nature and dates of the non-compliance;
• Identify how COVID-19 was the cause of the non-compliance and the decisions and actions taken in response, including “best efforts” to comply and steps taken to come into compliance at the earliest opportunity;
• Return to compliance as soon as possible; and
• Document the information, action, or condition specified in (1) – (4) above.

EPA expects to focus largely on situations that “may create an acute risk or imminent threat to public health or the environment”.   All ongoing enforcement matters will continue.

Primary compliance categories to which the Policy is applicable

The COVID Enforcement Policy addresses the following major compliance categories that are generally relevant to Mississippi facilities: (1) routine compliance monitoring and reporting, (2) facility operations and (3) critical infrastructure.

The Policy also addresses (1) public water systems regulated under the Safe Drinking Water System, (2) EPA settlement agreement and consent decree reporting obligation and milestones and (3) programs that EPA implements directly rather than by MDEQ.  Those portions of the Policy are not addressed in this article since they are not generally applicable to Mississippi facilities.

I. Routine compliance monitoring and reporting

EPA has determined that the COVID-19 pandemic may constrain the ability of facilities to perform the following environmental obligations:

1. Routine compliance monitoring – including CEMS and stack tests, relative accuracy test audits, LDAR monitoring, fence line monitoring, RICE readings and monitoring, tank and piping inspections, assessments, or stormwater inspections;
2. Integrity testing – including tank integrity testing (e.g., API 653) for compliance with certain “good air pollution control practices”;
3. Sampling – including effluent sampling and testing, as well as cooling tower sampling;
4. Laboratory analysis – including laboratory holding times and turn-around times;
5. Training – including SPCC training, hazardous waste trainings, CAA section 129 renewals, and other annual re-certifications; and
6. Reporting and certification – including reports and certifications associated with delayed activities described above, and late reports under permits or other regulatory obligations, including TRI and greenhouse gas inventory reporting.

If reporting is not “reasonably practicable” due to COVID-19, Mississippi facilities should maintain this information internally and make it available to MDEQ upon request. In general, EPA does not expect to seek penalties for violations of these obligations in situations where (1) EPA agrees that COVID-19 was the cause of the non-compliance and (2) the facility provides supporting documentation to EPA upon request.  After the Policy is no longer in effect, EPA does not plan to ask facilities to “catch-up” with missed monitoring or reporting if the underlying requirement applies to intervals of less than three months.

II. Facility operations

With regard to COVID-19 impacts on facility operations, the Policy includes the following key provisions:

1. Facilities should contact MDEQ if facility operations impacted by the COVID-19 pandemic may create an acute risk or an imminent threat to human health or the environment. In Mississippi, EPA’s first step after this contact will be to consult with MDEQ to discuss measures to minimize or prevent the acute or imminent threat to health or the environment from the COVID-19-caused non-compliance.
2. If a facility suffers from failure of air emission control or wastewater or waste treatment systems or other facility equipment that may result in exceedances of enforceable limitations on air emissions, water discharges, land disposal, or other unauthorized releases, the facility should notify MDEQ as quickly as possible. The notification also should include (1) information on the pollutants emitted, discharged, discarded, or released; (2) the comparison between the expected emissions or discharges, disposal, or release and any applicable limitation(s); and (3) the expected duration and timing of the exceedance(s) or releases. EPA will consult with MDEQ to determine the appropriate response.
3. If a facility is a generator of hazardous waste and, due to disruptions caused by the COVID-19 pandemic, is unable to transfer the waste off-site within the time periods required under RCRA to maintain its generator status, the facility should continue to properly label and store such waste and comply with the Policy’s General Conditions (see above). If these steps are met, EPA will treat these facilities as “hazardous waste generators”, and not “treatment, storage and disposal” (TSD) facilities. In addition, EPA will treat “Very Small Quantity Generators” and “Small Quantity Generators” as retaining that status, even if the amount of hazardous waste stored on site exceeds a regulatory volume threshold due to the facility’s inability to arrange for shipping of hazardous waste off of the facility site due to the COVID-19 pandemic.
4. If a facility is an animal feeding operation, and, due to disruptions caused by the COVID-19 pandemic, is unable to transfer animals off-site and, solely as a result of the pandemic, meets the regulatory definition of concentrated animal feeding operation (CAFO), EPA will not treat these animal feeding operations as CAFOs (and will also not treat small CAFOs as medium CAFOs or medium CAFOs as large CAFOs).

III. Critical infrastructure

In situations where a facility is an “essential critical infrastructure”, EPA may consider a more “tailored” short-term “No Action Assurance” if EPA determines that is in the public interest. Such determinations are made on a case-by-case basis by EPA’s Office of Enforcement and Compliance (OECA) Assistant Administrator – Susan Bodine (who issued the Policy memorandum).  EPA will consider “essential” the facilities that employ “essential critical infrastructure workers” as determined by guidance issued by the Cybersecurity and Infrastructure Security Agency.

Exclusions from the Policy

The Policy does not provide EPA compliance enforcement discretion regarding:

• Accidental releases;
• Criminal violations;
• Superfund and RCRA corrective action; and
• Imports

Policy modifications/updates and termination

EPA will assess and update the Policy as needed and post a notification at https://www.epa.gov/enforcement/enforcement-policy-guidance-publications at least seven days prior to terminating the Policy.

If you have any questions concerning the COVID Enforcement Policy or related issues, please feel free to contact John Milner at jmilner@brunini.com or at (601) 960-6842.