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Mississippi Environmental Quality Permit Board

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Summary of Meeting Held May 12, 2020

The Mississippi Environmental Quality Permit Board (“Board”) convened at 9:00 a.m. on May 12, 2020.  This meeting was held through a telephone and Zoom 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 April 14, 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

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

Surface Mining Application

Permittee County Permit
Baker Ready Mix & Construction, LLC Winston A2038

James Matheney (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
J. J FERGUNSON SAND & GRAVEL CARROLL P98-027 No Release
JOE MCGEE CONSTRUCTION CO RANKIN P14-021 Final 10%
JOE MCGEE CONSTRUCTION CO RANKIN P15-001 Final 10%
MAGCO, INC JASPER P13-007 No Release
ODDEE SMITH CONSTRIUCTION, INC LINCOLN P02-066AAA Initial 35%
W.S. JORDAN & SONS SAND & GRAVEL, INC DESOTO P87-005 Initial 90%
W.S. JORDAN & SONS SAND & GRAVEL, INC DESOTO P92-001 Final 60%
W.S. JORDAN & SONS SAND & GRAVEL, INC DESOTO P96-026 Final 20%
W.S. JORDAN & SONS SAND & GRAVEL, INC DESOTO P99-045 Initial 90%
ALL SOUTH CONSTRUCTION NESHOBA P99-071A Final 80%

OFFICE OF POLLUTION CONTROL

WASTE DIVISION – SOLID WASTE PERMITTING BRANCH

 Quad County Environmental Solutions, LLC (Quad County Landfill), Marshall County, Modification of Solid Waste Mgmt. Permit SW0470010580

 MDEQ staff presented to the Board and recommended approval the above-referenced Application.  Staff described the Quad County Landfill projects and discussed the dates of various public notices and hearings, reporting that the no public comments were received at the hearing.  After answering some brief questions from the Board, MDEQ staff recommended issuance of the Permit and the Board approved.

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.

Mr. Furrh also reminded the Permit Board officer elections will be held during the June meeting.

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

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Mississippi Commission on Environmental Quality

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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

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Mississippi Environmental Quality Permit Board

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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

Permittee County Permit Staff Recommendation
Eutaw Construction Company Panola P16-016 Additional 15%
Eutaw Construction Company Oktibbeha P16-004 Final 50%
James Construction Group Hinds P14-005A No Release
Joe McGee Construction Co. Tallahatchie P16-029A Initial 70%
Wet Mine Assets Holding, LLC Hancock P04-008AT Initial 50%

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.

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U.S. Department of Labor Provides Additional Guidance on Employers’ OSHA Recordkeeping Responsibilities During COVID-19

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During the COVID-19 pandemic, employers have been forced to address the application of virtually every legal labor and employment obligation in the context of the pandemic.  One of these obligations includes an employer’s responsibilities under the federal Occupational Safety and Health Act (OSHA), which is administered by the U.S. Department of Labor (DOL).  The DOL previously published its Guidance on Preparing Workplaces for COVID-19, in which it outlined steps for employers to protect their employees.

On April 10, 2020, the DOL issued additional guidance addressing the agency’s enforcement of OSHA’s recordkeeping requirements amid the COVID-19 pandemic.  Generally, OSHA recordkeeping requirements command “covered employers” to record certain work-related injuries and illnesses on their OSHA 300 log. However, since the on-set of this pandemic, employers have wrestled with whether they are required to record an employee’s COVID-19 illness—and if so, when.

According to the DOL, COVID-19 is “recordable” and must be included on an employer’s OSHA 300 log, if:

  • The case is a confirmed case of COVID-19, as defined by Centers for Disease Control and Prevention (CDC);
  • The case is “work-related,” (as defined by 29 CFR § 1904.5); and
  • The case involves one or more of the general recording criteria, (as outlined by OSHA and set forth in 29 CFR §1904.7). Per OSHA, cases meet this recording criteria if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond “first aid,” or loss of consciousness.

In the same guidance, the DOL expressly stated that it will not require covered employers to make a determination regarding “work-relatedness” (Step # 2 above), except where:

  • There is objective evidence that a COVID-19 case may be work-related; and
  • The evidence was reasonably available to the employers.

The DOL expressly states that this limited recordkeeping waiver does not apply to employers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting and law enforcement services), and correctional institutions.

The DOL’s stated goal of this limited enforcement is to “help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects, rather than on making difficult work-relatedness decisions in circumstances where there is community transmission.”

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New Guidance for Employers on Obtaining COVID-19/Paid Sick Leave Tax Credits

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The Internal Revenue Service (IRS) has finally provided employers covered by the Families First Coronavirus Response Act (FFCRA)—those employers with less than 500 employees—with guidance concerning the documentation needed in order to seek the refundable payroll tax credits provided for under the FFCRA.  In so doing, the IRS has essentially established the documentation employees should be prepared to provide to employers in order to obtain the new COVID-19 related paid sick leave rights.

As previously reported, President Trump officially signed the FFCRA into law on March 18, 2020.  Among its provisions, the FFCRA set out several key mandates that impact employers, including:

  • New, separate paid sick leave rights for employees impacted by COVID-19 and those serving as caregivers for individuals with COVID-19; and
  • New, enhanced leave entitlements under the federal Family Medical Leave Act (“FMLA”), including paid leave under FMLA.

Since its passage, employers covered by the FFCRA have worked to understand and implement the FFCRA, including how to obtain the refundable tax credits provided by Congress as a way to offset the costs of these new mandates.

Recently, the Internal Revenue Service (IRS) provided its own initial guidance to assist covered employers with the mechanics of complying with the FFCRA.  Of particular importance to employers, the IRS provided some guidance regarding what information covered employers should receive from an employee in order to “substantiate” eligibility for the FFCRA tax credits.  You should maintain all records noted below for at least four (4) years after the payroll tax becomes due or is paid, whichever is later.

General Required Documentation

According to the IRS guidance, a covered employer will “substantiate eligibility” for the FFCRA’s paid sick leave and/or paid family leave credits if the employer receives a written request for such leave from the employee in which the employee provides:

  • The employee’s name;
  • The date or dates for which leave is requested;
  • A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
  • A statement that the employee is unable to work, including by means of telework, for such reason.

In addition, the IRS directs covered employers to “create and maintain records” that include the following information:

  1. Documentation to show how you determine the amount of qualified sick and family leave wages you paid to each employee, including records of work, telework, and qualified family leave;
  2. Documentation to show how you determine the amount of qualified health plan expenses that the employer allocated to wages;
  3. Copies of any completed Forms 7200, Advance of Employer Credits Due to COVID-19, that you submit to the IRS;  and
  4. Copies of the completed Forms 941, Employer’s Quarterly Federal Tax Return, that you submit to the IRS.

Reason-Specific Documentation

In addition to the general requirements outlined above, several of the specific COVID-19 related reasons for leave require their own additional details.  For example, in the case of a leave request based on “a quarantine order or self-quarantine advice,” the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

Similarly, in the case of a leave request based on “a school closing or child care provider unavailability,” the statement from the employee should include:

  • The name and age of the child (or children) to be cared for,
  • The name of the school that has closed or place of care that is unavailable, and
  • A representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave.

Additionally, with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen (14) during daylight hours, a statement that special circumstances exist requiring the employee to provide care.

While this IRS guidance does provide covered employers with additional clarity on the types of forms and other documentation needed to obtain the sought-after refundable tax credits under the FFCRA, the IRS guidance also raises other questions that will need to be answered. For example, the IRS guidance does not specify what would satisfy “statement of the COVID-19 related reason the employee is requesting leave and written support for such reason.”  Legal commentators recommend that any certification forms distributed to employees requesting leave also include language indicating that “additional documentation may be required.”

As the IRS and DOL continue to release additional information on the process for employers to receive these important tax credits, we will continue to monitor further proposed legislation and its potential effects on employers.

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EPA Issues Unprecedented Civil Enforcement Relaxation Policy Due to COVID-19

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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.

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U.S. Department of Labor Releases Model Posting for Families First Coronavirus Response Act

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On Wednesday, March 25, 2020, the U.S. Department of Labor (DOL) released the first version of the required notice posting that is required as part of the Families First Coronavirus Response Act (FFCRA).  You can find the current version of this poster by going to this DOL website: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf.  While the DOL did not indicate the date by which employers would need to post this notice poster, covered employers are advised to post it by at least April 1, 2020, the effective date of the FFCRA.  Each “covered employer”—those with 500 or less employees—must post this notice of the FFCRA requirements in “a conspicuous place on its premises of the employer where notices to employees are customarily posted.”  An employer may also satisfy this requirement by emailing (or directly mailing) the notice to its employees.  An employer may also post this notice on an employee information website (such as an intranet).

At this time, Brunini’s Labor & Employment Practice Group suggests that employers wait to print out and post this material until March 31, 2020, as the DOL may issue an updated version.  If such an update is provided, the DOL should post the update in this location.

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Mississippi Commission on Environmental Quality

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Summary of Meeting Held February 27, 2020

The Mississippi Commission on Environmental Quality (“MCEQ”) convened at 9:00 a.m., on February 27, 2020, at the offices of the Mississippi Department of Environmental Quality in Jackson.  The Commission approved minutes from the previous meeting held on November 15, 2019.  Chairman, John Dane, III welcomed Chris Wells as Interim Executive Director of the Mississippi Department of Environmental Quality (“MDEQ”).  Following a prepared agenda, items considered were as follows:

FY 2021 Title V Fee Recommendation – Approval to Proceed to Public Notice of Hearing

MDEQ Staff discussed the draft report containing the Title V Advisory Council’s Title V fee recommendation for the upcoming fee year has been forwarded to the Commission. Staff requested approval to hold a public hearing to receive comments regarding the proposed fee and to proceed with public notice of the hearing. After the public participation process is completed, staff will bring the fee recommendation back before the Commission for final action. This agenda item was presented for informational purposes only.

Commission Approval of Brownfield Agreement Termination

MDEQ Staff reported that the Commission approved Brownfield Agreement 6957-19 in June 2019 between the Commission and the Military Lee, LLC for remediation of the former Lee Middle School property located in Columbus, Mississippi. The original brownfield agreement required lead paint and asbestos abatement. The completed remedial activities have met the requirements of the MDEQ-approved Corrective Action Plan dated April 2019. Military Lee, LLC has requested the Commission to make a determination as to the completion of the Brownfield Agreement. The staff recommends the completion of the Brownfield Agreement. The staff of the MCEQ has evaluated the Brownfield Agreement completion and believes that the Site is in compliance with applicable State and Federal laws and standards and will be protective of the public health and the environment. The Commission approved this termination.

Environmental Covenant for YRC Freight Facility

Pursuant to the Commission’s delegation regulations (11 Miss. Admin. Code Pt. 1, R.1.1.Y.), the Executive Director of MDEQ approved the Environmental Covenants between the Commission and YRC Inc. regarding the remediation of property located at 102 Carrier Boulevard in Richland, Mississippi. YRC is an active trucking terminal and vehicle maintenance facility. The groundwater monitoring and recovery wells have been plugged and decommissioned. 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.

Commission Briefing on Underground Storage Tank Regulatory Fee

Pursuant to Miss. Code Ann. Sec. 49-17-421 revised July 1, 2018, the Commission is charged by law to establish the tank regulatory fee in an amount sufficient to cover the cost of the UST Program. The owners of each underground storage tank available for use in Mississippi is required to pay MDEQ the annual tank regulatory fee. The statutory revision also created Miss. Code Ann. Sec. 49-17-422 that established an Advisory Council to conduct an independent study of the cost of the UST Program and provide the Commission a written report and recommendations on the annual tank fee. This report was provided to the Commission on December 31, 2019. Staff provided information on the report, recommendations, and the public notice for comment. This agenda item was presented for informational purposes only.

Pollution Emergency Response Regulations

Ted Lampton, MDEQ Legal Counsel reported on the Pollution Emergency Response Regulations. Pursuant to Mississippi Code Sections 17-17-29, 49-17-43, 49-17-27, and 49-17-68, persons who cause pollution or own facilities which cause pollution are liable for the cost of remedial or clean-up action resulting from such pollution. The purpose of this new regulation is to include these various sources of statutory authority for pollution emergency response and to include definitions to provide clarity and consistency in the implementation of these statutes related to emergency response requirements. If adopted by the Mississippi Commission on Environmental Quality, this regulation will be codified at Title 11, Part 9, Chapter 1 of the Mississippi Administrative Code. A public hearing on the new regulation was held on December 12, 2019. No written or verbal comments were received from the public related to the proposed regulation. A copy of the proposed regulations is included in the Commission’s packet for review prior to the Commission’s meeting on February 27th. Staff recommended and the Commission approved adoption of this new regulation.

Modification of Hinds County Solid Waste Management Plan

Ted Lampton, MDEQ Legal Counsel reported on the Modification of Hinds County Solid Waste Management Plan. An evidentiary hearing was held on September 19, 2019, regarding Commission Order No. 6772-17, which approved the modification of the Hinds County Solid Waste Management Plan to allow for the expansion of the Faircloth Class I Rubbish Site. The hearing was held before Hearing Officer Doug Levanway. Hearing Officer Levanway presented his findings of fact and recommended decision at the Commission’s November 15, 2019, meeting. In his findings and recommended decision, the Hearing Officer recommended that the Commission affirm the Order which approves the modification of the Hinds County Solid Waste Management Plan allowing for the expansion of the Faircloth Class I Rubbish Site by an additional 26.55 acres. The Commission considered the Hearing Officer’s recommended decision after reviewing the previously provided record which includes the Petition for Hearing, the transcript of the Motion Hearing, the transcript of the Evidentiary Hearing, exhibits to the transcripts (including pre-filed testimony submitted by the parties-William G. (Bill) Moore-Petitioner, Hinds County Board of Supervisors-Intervenor, Faircloth Rubbish Landfill, Inc.-Intervenor and MDEQ), Motions to Intervene, Motions in Limine, Responses to Motions, witness lists, and the Hearing Officer’s Findings of Fact and Recommended Decision. The Commission then voted to adopt the Hearing Officer’s Recommended Decision to affirm the issuance of Commission Order No. 6772-17, which approved the modification of the Hinds County Solid Waste Management Plan to allow for the expansion of the Faircloth Class I Rubbish Site. Staff will recommend that the Commission adopt an Order reflecting its previous decision in this matter which is included in the Commission’s packet for review prior to the Commission meeting on February 27th. Staff recommended and Commission approved that Interim Executive Director Chris Wells be authorized to sign the Order on behalf of the Commission.

Certifications Approved since the last report

Type Number
Asbestos Certifications 292 certifications
Lead Paint Certifications 147 certifications
Underground Storage Tanks (UST) Certifications 22 certifications to those who install, alter, or remove underground storage tanks
Wastewater Operator Certifications 70
Emergency Clean-Up Expenses 8

Administrative Orders

27 Administrative Orders and 2 Amended Agreed Orders were issued since the last report, and they will added to the minutes.

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

IRS Circular 230 Notice

To ensure compliance with requirements imposed by the IRS, we inform you that, unless specifically indicated otherwise, any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any tax-related matter addressed herein.

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Mississippi Environmental Quality Permit Board

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The Mississippi Environmental Quality Permit Board (“Board”) convened its regular monthly meeting at 9:00 a.m. on March 10, 2020, at the offices of the Mississippi Department of Environmental Quality, in Jackson.  Chris McDonald chaired the meeting.

The Board approved minutes from the February meeting and the non-controversial actions/ certifications completed by the staff since the February meeting.

Following a prepared agenda, items considered were 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
Meggs Dirt & Gravel, LLC Attala P10-008 Initial 60%
Milton Chad Coffey Union P07-014T Final 80%
Milton Loper Madison P94-038 Final 10%
Milton Loper Madison P89-010 Final 90%
Milton Loper Madison P93-100 Final 10%
Joe McGee Construction Co. Madison P11-024 Final 10%
Joe McGee Construction Co. Rankin P14-022 Initial 90%

Surface Mining Permit Transfer

Permittee County Permit
Benefield Sand Company to Ripley Sand Tippah P93-059

OFFICE OF POLLUTION CONTROL

401/STORMWATER BRANCH

Belle Fontaine Subdivision, Jackson County – Consideration of Issuance of a 401 Water Quality Certification (WQC2017103).

MDEQ Staff presented to the Board and recommended approval of the above-referenced application.  Belle Fontaine Subdivision requested the permit in connection with a proposed single-family residential subdivision. MDEQ received letters of objection from adjacent property owners citing flooding, wetland impacts and endangered species issues among others; however, no one appeared at the meeting.  The Application was amended to address the concerns of the adjacent property owners.  A representative for Belle Fontaine Subdivision spoke at the meeting stating that he had met with the property owners regarding the existing flooding problems and stated that the subdivision was designed to meet 100-year flood standards and that this should solve current flooding problems with the neighbors.  The Applicants are required to purchase mitigation credits before construction.  After a question from the Board, the Board approved the Application.

Golden Bay Investments, Oak Landing RV Park (“Golden Bay”), Harrison County – Consideration of Issuance of a 401 Water Quality Certification (WQC2017056).

MDEQ Staff presented to the Board and recommended approval of the above-referenced application.  Golden Bay requested the permit in connection with a proposed upscale RV park. MDEQ received letters of objection from adjacent property owners citing drainage, flooding, wetland impacts and endangered species issues among others; however, no one appeared at the meeting.  The Application was amended to address the concerns of the adjacent property owners. A representative for Golden Bay spoke at the meeting stating that he had met with the property owners regarding the existing drainage problems and stated that the subdivision was designed to meet 100-year flood standards and that this should solve current drainage problems with the neighbors.  The Applicants are required to purchase mitigation credits before construction.  After a question from the Board, the Board approved the Application.

AIR II BRANCH

Jackson Memorial Funeral Service, LLC, Hinds County – Buffer Zone Variance Request (Air Ref. No. 1080-00264)

Staff presented but did not provide a recommendation to the Board concerning an application for buffer zone variance from 150-foot setback to the minimum setback to 110 feet for one adjoining property owner and 95 feet for another property owner.  Staff stated that contiguous land owners were contacted.  A representative from the funeral home visited with the abutting property owners regarding the variance, and the property owners stated that they have no objection to the variance.  No one in opposition appeared at the meeting.  The Board approved the variance.

Other Business

Roy Furrh, MDEQ Legal Counsel reminded the Board Members that the Evidentiary Hearing regarding Mississippi State Port Authority, North Port Property in Harrison County is scheduled for May 12, 2020.

Mr. Roy 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.

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

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U.S. Department of Labor Issues First Guidance Concerning Families First Coronavirus Response Act (FFCRA)

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On Wednesday, March 18, 2020, President Trump officially signed the Families First Coronavirus Response Act (FFCRA) into law.  The text of the FFCRA provided broad details concerning its two principal mandates: (1) new, paid sick leave rights for workers impacted by COVID-19 and those serving as caregivers for others with COVID-19; and (2) new, enhanced leave entitlements under the Family Medical Leave Act (FMLA), including limited paid leave rights.  However, Congress failed to address many of the details concerning the implementation of the FFCRA, instead deferring to the Secretary of Labor.

On Tuesday, March 24, 2020, the U.S. Department of Labor (DOL) issued a series of guidance attempting to answer preliminary questions concerning the mechanics of the FFCRA.  Specifically, the DOL issued a General Question and Answer page, along with Fact Sheets for Employers and Employees.  The DOL also stated it also will be issuing implementing regulations regarding the new law in the near future, as well as additional guidance.  Of note, the DOL indicated that the FFCRA will officially go into effect on Wednesday, April 1, 2020—not on April 2nd as originally expected.

While circumstances remain fluid, we will continue to monitor further proposed legislation and its potential impact on our clients.

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