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Newsletters

Mississippi Environmental Quality Permit Board Summary of Meeting Held March 8, 2022

March 9, 2022 by Brunini Law

Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Environmental Quality Permit Board (“Board”) convened at 9:00 a.m. on March 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 February 8, 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
Talbot Brothers Grading Company Grenada P12-007 Final 40%

 

Surface Mining Transfer

Permittee County Permit
D. Murray Properties, LLC to Dirt, Inc. Harrison P21-003

 

Other Business

Roy Furrh, MDEQ Chief Counsel, provided there was no other business other than a reminder of the next Permit Board meeting, which will held on April 12, 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.

Related Attorneys

  • John E. Milner

Mississippi Environmental Quality Permit Board

February 8, 2022 by Brunini Law

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.

Related Attorneys

  • John E. Milner

Mississippi Enacts New Medical Marijuana Law

February 7, 2022 by Brunini Law

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.

Related Attorneys

  • Christopher R. Fontan
  • Claire Williams

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

January 13, 2022 by Brunini Law

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.

 

 

 

Related Attorneys

  • Christopher R. Fontan
  • Claire Williams

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

January 13, 2022 by Brunini Law

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.

 

 

 

Related Attorneys

  • Christopher R. Fontan
  • Claire Williams

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

January 11, 2022 by Brunini Law

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.

Related Attorneys

  • John E. Milner

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

January 7, 2022 by Brunini Law

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.

 

 

Related Attorneys

  • Christopher R. Fontan

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

December 20, 2021 by Brunini Law

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.

 

 

 

 

Related Attorneys

  • Christopher R. Fontan

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

November 29, 2021 by Brunini Law

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.

Related Attorneys

  • John E. Milner

OSHA’s Emergency Temporary Standard is Here (Maybe) – Now What?

November 11, 2021 by Brunini Law

By:  Chris Fontan

On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) released its anticipated, or controversial, emergency temporary standard (“ETS”) aimed at curbing further spread of COVID-19. The ETS—which is a “vaccinate-or-test” workplace mandate—applies to most employers with 100 or more employees (“Employers”).  Under the ETS, Employers must either mandate COVID vaccinations or require masking combined with proof of negative COVID tests on a weekly basis as a condition of employment.

All requirements of the ETS, other than testing for unvaccinated employees, are effective 30 days after publication of the ETS in the Federal Register (i.e., Dec. 5, 2021). Thus, the ETS requires Employers to ensure all unvaccinated employees working “in person” begin wearing masks by Dec. 5, 2021, and start providing negative COVID-19 tests on a weekly basis beginning Jan. 4, 2022.

As expected, numerous legal challenges to the ETS have been and will continue to be made in the coming weeks. As we previously reported, the U.S. Court of Appeals for the Fifth Circuit recently enacted a nationwide injunction, temporarily preventing OSHA from enforcing the ETS.  While the future of the ETS remains uncertain due to this and similar legal challenges, it will take weeks of planning for employers to comply with the ETS’s deadlines. With that in mind, employers should continue preparing for the ETS as if it is going to take effect while litigation continues.  As a result, employers must continue to prepare for potential compliance with the ETS.

Overview of the ETS’ Requirements

According to a “Fact Sheet” prepared by OSHA, the ETS requires Employers to do the following:

  • Implement a mandatory, written COVID-19 vaccination policy, with or without an exception allowing employees to instead undergo weekly COVID-19 testing (beginning Jan. 4, 2022) and wear a face covering at the workplace (beginning Dec. 5, 2021).
  • Obtain proof of the vaccination status of each employee.
  • Create a roster/list showing the vaccination status of each employee.
  • Securely maintain both the proof of vaccination status and the roster/list.
  • Provide employees with up to four (4) hours of paid time off to receive each primary vaccination injection/dose.
  • Provide employees with a “reasonable amount” of paid sick leave to recover from any side effects experienced following each primary vaccination injection/dose.
  • Ensure that each employee who is not fully vaccinated is tested at least weekly for COVID-19 (if in the workplace at least once a week) or within seven days before returning to work (if away from the workplace for a week or longer).
  • Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes (subject to specific, limited situations).
  • Require employees to promptly provide notice when they receive a positive COVID-19 test (or are diagnosed with COVID-19). Immediately remove any employee, regardless of vaccination status, from the workplace who receives a positive COVID-19 test/is diagnosed with COVID-19, and keep the employee out of the workplace until the return-to-work criteria are met.
  • Provide each employee with information they can understand about: the requirements of the ETS and workplace policies and procedures established to implement the ETS, the CDC document “Key Things to Know About COVID-19 Vaccines”, information about protections against retaliation and discrimination, and information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
  • Report work-related COVID-19 fatalities to OSHA within 8 hours of the employer learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of learning about them.
  • Make certain records available to an employee or an employee representative for examination and copying.

Steps for Complying with the ETS

  1. Determine if your organization is covered by the ETS.

 

  1. Determine vaccination status of your organization’s employees.

 

  1. Evaluate available options and logistics for testing—even Employer’s opting for full vaccination mandate will need testing options as a potential “reasonable accommodation” for claimed disabilities and/or religious exemptions.

 

  1. Assess potential impact of paid-time-off and other new requirements.

 

  1. Determine your organization’s approach and draft a written policy.

 

  1. Craft necessary and required employee communications.

 

  1. Establish your organization’s reporting and recordkeeping protocols.

Employers are encouraged to take these steps, 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.

 

 

 

 

 

Related Attorneys

  • Christopher R. Fontan
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