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EEO-1 Component 2 Deadline Approaching!

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All private employers employing 100 or more employees and subject to Title VII must submit an EEO-1 report annually. Most federal contractors and subcontractors that employ 50 or more employees also are required annually to submit an EEO-1 report (however, only those federal contractors that employ 100 or more employees are required to submit Component 2 data).  If an employer fails to submit its EEO-1 report, under Section 709(c) of Title VII, the Equal Employment Opportunity Commission (EEOC) may compel an employer to file its EEO-1 report by obtaining an order from the U.S. District Court. Under Section 209(a) of Executive Order 11246, the penalties for failure of a federal contractor or subcontractor to comply may include termination of the federal government contract and debarment from future federal contracts.

The EEO-1 Report is a compliance survey mandated by Title VII of the Civil Rights Act of 1965 with amendments and administered by the EEOC and the U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP). The filing of Standard Form 100 is required by law. The Component 1 survey required companies to categorize employment data by race/ethnicity, gender and job category.

In addition to Component 1, employers are required to submit pay data (also known as Component 2 or EEO-2) as part of EEO-1 reporting to improve investigations of possible pay discrimination by gender, race or ethnicity. In 2019, a federal judge reinstated the revised EEO-1 Component 2 reporting provisions. As a result, the EEOC announced the reinstatement of the revised EEO-1: Pay Data Collection, which requires the collection and submission of 2017 and 2018 pay data (Component 2) by September 30, 2019.

The EEOC, in conjunction with NORC at the University of Chicago (an independent research institution) established a web-based portal for the collection of this information, which can be accessed at this address: https://eeoccomp2.norc.org/.  Additionally, the EEOC established a toll-free number to answer frequently asked questions through NORC at (877) 324-6214. You can also send email questions to EEOCcompdata@norc.org.

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Mississippi Environmental Quality Permit Board

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Summary of Meeting Held August 13, 2019

The Mississippi Environmental Quality Permit Board (“Board”) convened its regular monthly meeting at 9:00 a.m. on August 13, 2019, at the offices of the Mississippi Department of Environmental Quality, in Jackson. Chris McDonald chaired the meeting.

The Board approved minutes from the July meeting and the non-controversial actions/ certifications completed by the staff since the July 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
Krystal Gravel Copiah P78-023T1 No Release
Krystal Gravel Copiah P10-028 Initial 20%
Krystal Gravel Copiah P14-014 Additional 30%
Krystal Gravel Copiah P99-035A Additional 10%
Krystal Gravel Copiah P93-004T1 Additional 40%
Krystal Gravel Copiah P87-012 Additional 10%
Krystal Gravel Copiah P17-012 Additional 10%
Krystal Gravel Copiah P16-015 No Release
Krystal Gravel Copiah P87-003   Initial 20%
Krystal Gravel Copiah P79-002T2 Final 10%
Pierce Construction and Contract Hauling Inc. Monroe P17-003 Initial 90%
Memphis Stone & Gravel Company DeSoto PO4-041 Final 10%

OFFICE OF POLLUTION CONTROL

ENVIRONMENTAL PERMITS DIVISION MUNICIPAL – WATER I AND 401/STORMWATER BRANCHES

Mississippi State Port Authority, North Port Property, Harrison County – Issuance of a 401 Water Quality Certification (WQC2018036) and Issuance of NPDES Construction Stormwater Coverage (MSR107890).

MDEQ Staff presented to the Board and recommended approval of the above-referenced application. The Mississippi State Port Authority (“Port Authority”) requested the permits in connection with a proposed facility to be constructed on a 10-acre site that is to be utilized for military storage and staging area. The proposed site adjoins the Kansas City Southern Railway and is on land formerly utilized by fertilizer plant which was subject to a corrective action plan (“CAP”). The proposed site is a portion of an approximately 140-acre tract.

Staff stated that, as a result of notification of contiguous land owners and public notice, multiple comments were received and a public hearing was held. Multiple members of the community spoke in opposition. After much discussion, the Board approved the application contingent upon the Port Authority purchasing the appropriate wetlands mitigation credits.

Auburn Apartments LLC. Guru Properties, Lee County – Buffer Zone Variance Request (NPDES Ref. No. MS0062499)

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 of 10 feet in order to install a septic treatment facility. Staff stated that contiguous land owners were contacted and one person representing multiple family members came and spoke in opposition to the project. After much discussion, the Board approved the buffer zone variance request.

Gold Coast Commodities Inc. Wastewater Treatment Site, Rankin County – Issuance of State Operating No Discharge Permit (MSU218003)

Staff presented but did not provide a recommendation to the Board concerning an application for the issuance of a state operating no-discharge permit. Gold Coast Commodities Inc. (“Gold Coast”) manufactures and processes seed stock and used cooking oil, and the wastewater from the process is currently transported out of state for treatment and disposal. Issuance of the permit would allow Gold Coast to treat and discharge their wastewater locally. After much discussion, the Board approved the permit application contingent upon additional inspections.

Other Business

MDEQ Staff presents proposed findings of fact and conclusions of law for consideration regarding denial of Petitioner Stephen M. Maloney’s Request for Revocation of Renaissance at Colony Park, LLC’s Clean Water Act Section 401 Water Quality Certification (No. WQC 2015041).

The next Permit Board meeting will be held on September 10, 2019, 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 August 22, 2019

The Mississippi Commission on Environmental Quality convened at 9:00 a.m., on August 22, 2019, at the offices of the Mississippi Department of Environmental Quality in Jackson. The Commission approved minutes from the previous meeting held on June 27, 2019.  Following a prepared agenda, items considered were as follows:

Water Pollution Control (Clean Water) State Revolving Fund Loan Program Proposed Resolution of Necessity to Issue Bonds

MDEQ staff recommended and the Commission adopted the proposed Resolution of Necessity to Issue Bonds regarding the Water Pollution Control (Clean Water) State Revolving Fund Loan Program. During the 2019 legislative session, House Bill 1568 was passed and subsequently signed by the Governor. This bill provided for the issuance of $7,940,000 in bonds to provide state matching funds required to obtain $39,700,000 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 provided copies of the Resolution to the Commission for consideration.

Water Pollution Control Revolving Loan Fund (WPCRLF) Program Proposed Adoption of FY-2019 Intended Use Plan

MDEQ staff recommended and the Commission adopted the FY-2019 Intended Use Plan. This document identifies the loan funds available to our 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 were solicited through a public comment period and a public hearing and no comments were received.

Mississippi Commission on Environmental Quality v. High Cotton Oil Company, Inc. Proposed Final Order

Roy Furrh, MDEQ Chief Counsel, discussed the proposed final order regarding High Cotton Oil Company, Inc. Following a presentation by designated Hearing Officer Trey Smith at its meeting on June 27, 2019, the Commission adopted his Findings and Recommended Decision related to the High Cotton Oil Company, Inc. evidentiary hearing previously held on February 27, 2019. Staff recommended and the Commission adopted the final order.

Environmental Covenant for Richardson Molding Facility

This agenda item is for reporting purposes only. 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 ORG Mississippi Holdings, LLC regarding the remediation of property located at 931 Herman Alford Memorial Hwy, in Philadelphia, Neshoba County, Mississippi. ORG Mississippi Holdings, LLC operated the site as the Richardson Molding Facility, a plastic injection molding company. The staff of the MDEQ has evaluated the proposed environmental covenants and believes that, with other conditions and restrictions contained therein, the site will be in compliance with applicable State laws and standards and will be protective of the public health and the environment.

Ex Parte Administrative Order for Owner and Operator of SS Food Market

This agenda item is for reporting purposes only. Under the authority of Miss. Code Ann. § 49-12-13 (Rev. 2003), the Executive Director of MDEQ issued an ex parte administrative order against the Kawaljit Singh, Sukhdev Singh, and SS Food Market LLC. These respondents own and/or operate an aboveground storage tank (AST) convenience store located at 841 S. Natchez Street, Koscuisko, Attala County, MS. On April 10, 2019, MDEQ investigated a reported release which revealed dead vegetation extending from the ASTs, across a third party property and to a nearby creek emanating a strong petroleum odor. After requests to address the petroleum contamination were not complied with, the Executive Director of the MDEQ found it necessary to issue this ex parte administrative order so that respondents must develop a work plan, submit it for approval, and conduct sampling investigation at this location to adequately delineate the soil contamination.

Commission Approval of Brownfield Completion

MDEQ staff recommended and the Commission approved the brownfield agreement completion as follows: On August 23, 2018, the Commission reached a brownfield agreement (#6879-18) with the City of Vicksburg, Warren County, MS, for the remediation of the former Kuhn Memorial Hospital in Vicksburg, Warren County, MS. On August 2, 2019, and in accordance with Rule 2.1.7.B of Part 3, Chapter 2: Final Regulations Governing Brownfield Voluntary Cleanup and Redevelopment in Mississippi (“Brownfield Regulations”), the City of Vicksburg sent a petition to the Commission to make a determination as to the completion of the brownfield agreement and as to the issuance of a “no further action” letter by the Executive Director. The staff of the MDEQ 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 City of Vicksburg has completed brownfield agreement #6879-18.

Commission Approval of Brownfield Consulting Firms

MDEQ Staff has 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. Therefore, the staff recommended and the Commission approved the following firm as a Brownfield Consulting Firm:

Bhate Environmental Associates Inc.
1608 13th Ave. South, Ste. 300
Birmingham, AL 35205

The next Commission meeting is proposed to be on September 26, 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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Mississippi Environmental Quality Permit Board

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Summary of Meeting Held June 11, 2019

The Mississippi Environmental Quality Permit Board (“Board”) convened its regular monthly meeting at 9:00 a.m. on June 11, 2019, at the offices of the Mississippi Department of Environmental Quality, in Jackson. James Hoffmann chaired the meeting.

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

Following a prepared agenda, items considered were as follows:

OFFICE OF POLLUTION CONTROL

Water I Branch

Turkey Creek Farms, Inc., Greene County

Issuance of Coverage under the Dry Litter Poultry AFO General Permit (MSG201994)

Tracy Tomkins (MDEQ Staff) presented to the Board and recommended approval of the above-referenced Application. The Applicant proposes 2 poultry houses and construction activity on 3 acres of disturbed land during construction. Staff stated that upon notification of the contiguous land owners by the Applicant, 1 letter in opposition was received. . The individual who submitted the letter of objection did not attend the Permit Board Meeting. Because the application is complete, MDEQ staff recommended issuance of the Permit.

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
Century Construction and Realty, Inc. Lee County P10-039TH Final 20%
Hammett Gravel Company, Inc. Holmes County P10-020AAA Initial 10%
Krystal Gravel, Inc. Copiah County P00-027 Additional 30%
Krystal Gravel, Inc. Copiah County P09-007 Additional 60%
Krystal Gravel, Inc. Copiah County P17-004A Additional 30%
Krystal Gravel, Inc. Copiah County P17-018 Additional 80%
Krystal Gravel, Inc. Copiah County P17-019 Additional 65%
Krystal Gravel, Inc. Copiah County P87-040T2 No Release
Krystal Gravel, Inc. Copiah County P90-020 No Release
Krystal Gravel, Inc. Copiah County P91-029T Additional 20%
Krystal Gravel, Inc. Copiah County P92-029T2 No Release
Krystal Gravel, Inc. Copiah County P92-107 Additional 20%
Krystal Gravel, Inc. Copiah County P95-079 No Release
Tri- State Jackson Lands, LLC Hinds County P06-008 Final 10%

 SURFACE MINING PERMIT TRANSFER

North MS Gravel Company, LLC to Rebel Rock, LLC Monroe County P16-028TA
Joe MC Gee Construction Co. to DDB Construction Madison County P11-029A

OTHER BUSINESS:

  1. Permit Board Officer Elections 7/1/19 to 6/30/20
  • Chris McDonald was elected as Chairman
  • Jennifer Whittmann was elected as Vice-Chairman

Roy Furrh, MDEQ Legal Counsel, thanked James Hoffmann, current Chairman, for his 39 years of service.

  1. Mr. Furrh reported that Mr. Steve Maloney appealed the Permit Board’s decision after the Renaissance at Colony Park, LLC evidentiary hearing regarding the denial of Petitioner’s Request for Revocation of Section 401 Water Quality Certification No. WQC 2015041.  The next step will be a chancery court proceeding on the evidentiary hearing record made by the parties before the Permit Board.

The next Permit Board meeting will be held on July 9, 2019, 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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The Mississippi Environmental Quality Permit Board (“Board”) convened its regular monthly meeting at 9:00 a.m. on April 9, 2019, at the offices of the Mississippi Department of Environmental Quality, in Jackson. James Hoffmann chaired the meeting.

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

Following a prepared agenda, items considered were 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
Memphis Stone & Gravel Company DeSoto P01-024 Final 90%
Neely Trucking & Excavating Rankin P96-074 Additional 10%
Thomas D. Murray Harrison P11-004 Initial 90%
W.E. Blain & Sons, Inc. Scott P91-046T Final 50%
W.E. Blain & Sons, Inc. Scott P96-013 Final 50%

SURFACE MINING PERMIT TRANSFER

Sam Pilkinton to Phillips Contracting Co. Lowndes P09-025
Dubois Dozer and Dirt Inc. to Freedoms Image, LLC Rankin P18-004

SURFACE MINING PERMIT TO RESCIND

Pecana Grande Yazoo P99-022T

 OTHER BUSINESS:

Evidentiary Hearing – Renaissance at Colony Park, LLC

Madison County, Mississippi – Evidentiary Hearing Regarding MDEQ’s denial of Petitioner’s Request for Revocation of Section 401 Water Quality Certification No. WQC 2015041

The next Permit Board meeting will be held on June 11, 2019, 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 March 12, 2019

The Mississippi Environmental Quality Permit Board (“Board”) convened its regular monthly meeting at 9:00 a.m. on February 12, 2019, at the offices of the Mississippi Department of Environmental Quality, in Jackson. James Hoffmann chaired the meeting.

The Board approved minutes from the February meeting and the non-controversial actions/ certifications completed by the staff since the August 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
AMG Construction, Inc. Tallahatchie P16-019 Initial 90%
Boydstun Lumber Company Winston P87-021 Final 10%
Hammett Gravel Yazoo P93-076 Final 90%
Hammett Gravel Yazoo P02-048 Final 90%
Memphis Stone & Gravel Company Panola P09-011 Initial 90%
Neely Trucking & Excavating Rankin P94-128 Final 90%
Ralph Weldy Forrest P94- 014A Final 10%

 SURFACE MINING PERMIT TRANSFER

Charles Henley to Necaise Brothers Constr, Inc Hancock P03-028A
Krystal Gravel, Inc to WAG Sand & Gravel, LLC Copiah P95-069T2
S & S Sand and Gravel, LLC to SamSand WMS, LLC Wilkinson P03-017AT

 SURFACE MINING PERMIT TO RESCIND

Firetower Landfill, LLC Biloxi P93-064T1
Mangum Farms Tunica P99-053
Wallace T. L. Construction Greene P15-018

 SURFACE PERMIT APPLICATION

WC Fore, LLC Harrison A1999

OTHER BUSINESS:

Mr. Furrh, MDEQ Legal Counsel, reported that a resolution has been worked out between Dr. Richard Vise and D and E Construction Company Inc. regarding the Reissuance and Modification of Coverage under the Mining Storm Water General Permit No. MSR320485, and Surface Mining Permit Modification with Acreage Permit No. P95-071 (Lauderdale County) which was approved by the Board during the December meeting. The request for an Evidentiary Hearing has been withdrawn.

The next Permit Board meeting will be held on April 9, 2019, 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.

BREAKING: Take 2 – U.S. Department of Labor Unveils Updated Attempt to Expand Employee Overtime Eligibility

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On Thursday, March 7, 2019, the United States Department of Labor (the DOL) released its newest Proposed Rule that, if implemented, would broaden federal overtime pay regulations to cover millions of additional workers who are currently exempt from overtime eligibility.  Under the Proposed Rule, the DOL seeks to update the regulations governing which executive, administrative, and professional employees (the so-called “white collar” workers) are entitled to minimum wage and overtime pay protections under the Fair Labor Standards Act (the FLSA).

The FLSA requires employers to pay its “non-exempt employees” overtime (1 ½ the workers’ “regular rate of pay”) for all hours worked in excess of forty (40) per week.  See 29 U.S.C. § 207.  The DOL’s regulations implementing the FLSA sets forth a variety of employment classifications that are “exempt” from the FLSA’s overtime requirement—including employees performing executive, administrative, and/or professional job duties.  Since the 1940’s, in order for an employee to qualify as an exempt “white collar” employee, he/she had to meet three “tests”:  (1) the employee must be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed; (2) the amount of salary paid must meet a minimum specified amount; and (3) the employee’s job duties must primarily involve executive, administrative, or professional duties (as defined by the regulations).  The DOL last fully updated these regulations in 2004, setting the current minimum salary threshold at $455 per week (or $23,660 per year).

In May 2016, the Obama-era DOL attempted change to the overtime rule that would have doubled the minimum salary level for the so-called “white collar” exemption from $23,660 to nearly $48,000 per year.  This proposal would have also increased the total annual compensation requirement needed to exempt “highly compensated employees” to $134,004 annually (previously set at $100,000), established a mechanism for automatically updating the minimum salary level every three years and allowed employers to use nondiscretionary bonuses and incentive payments to satisfy up to 10% of the new standard salary level.

Ultimately, the May 2016 proposal was challenged in court. On November 22, 2016, the U.S. District Court for the Eastern District of Texas enjoined the DOL from implementing and enforcing the proposal. On August 31, 2017, the court granted summary judgment against the DOL, invalidating the May 2016 proposal.  Currently, the Department is enforcing the regulations that have been in place since 2004, including the $455 per week standard salary level.

While an appeal of that decision to the United States Court of Appeals for the Fifth Circuit is pending, the current DOL seeks to formally rescind the Obama-era DOL’s 2016 proposal with this Proposed Rule.  In its place, the new Proposed Rule would raise the minimum salary level for exempt employees to only $679 per week, or $35,308 annually.  The Proposed Rule does have many similarities to the 2016 proposal, including:

  • Allowing employers to count nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the standard salary level test (provided such bonuses are paid annually or more frequently);
  • Increasing the total annual compensation requirement needed to exempt “highly compensated employees” to $147,414 annually (currently set at $100,000 annually); and
  • Not proposing any changes to the standard duties test for the white collar exemptions.

If the Proposed Rule is adopted, the DOL estimates that over 1.3 million workers who are currently classified as “salaried exempt”—and thus, not eligible for overtime—will become eligible for overtime pay.  While an increase, this figure is lower than the estimated 5 million workers who would have become eligible for overtime under the 2016 proposal.  As with the prior proposal, observers feel the number could rise well above the projected increase.  If implemented, the Proposed Rules will undoubtedly result in greater expense or operational change for many employers as they struggle to deal with a shrinking pool of workers who are eligible for an exemption from the overtime pay.

The Proposed Rule is still subject to a lengthy comment period before implementation.  The DOL encourages any interested members of the public to submit comments about the proposed rule electronically at www.regulations.gov (Rulemaking docket RIN 1235-AA20).

Though the Proposed Rule has not yet been finalized, employers are encouraged to be proactive and engage their legal counsel to begin planning for the change now.  Preparations should include auditing current practices and projecting the cost of change and FLSA compliance under the anticipated new framework. This includes evaluating the possibility and effects of significantly higher operating costs.

Mississippi Environmental Quality Permit Board

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Summary of Meeting Held January 8, 2019

The Mississippi Environmental Quality Permit Board (“Board”) convened its regular monthly meeting at 9:00 a.m. on December 11, 2018, at the offices of the Mississippi Department of Environmental Quality, in Jackson. James Hoffmann chaired the meeting.

The Board approved minutes from the August meeting and the non-controversial actions/ certifications completed by the staff since the August 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
A&A Excavating Contractor, Inc. Madison P92-087 Final 10%
Bald Hill, LLC Madison PO4-033A Initial 50%
Central Asphalt Company, Inc. Adams P17-005 Initial 40%
Ronnie Jones Construction, Inc. Lowndes P08-007 Initial 10%
T.L. Wallace Construction, Inc. Greene P15-018 Additional 10%
TCB Construction Company, Inc. Harrison P03-046 Final 20%
Tanner Construction Co., Inc. Lawrence P07-005A No release
Tanner Construction Co., Inc. Perry P08-019A Additional 15%
Tanner Construction Co., Inc. DeSoto P13-021T Additional 80%
Tanner Construction Co., Inc. DeSoto P17-009 Initial 70%

 OTHER BUSINESS:

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

Mr. Furrh reported that an Evidentiary Hearing has been requested regarding the D and E Construction Company Inc. Reissuance and Modification of Coverage under the Mining Storm Water General Permit No. MSR320485, and Surface Mining Permit Modification with Acreage Permit No. P95-071 approved by the Board during the December meeting. The Evidentiary Hearing will probably be after the March or May Permit Board hearings.

Mr. Furrh reminded the Board that the Le Poultry Evidentiary Hearing is scheduled to be heard after the Board’s April 9, 2019 meeting.

Lastly, Mr. Furrh reported to the Board that the Concerned Citizens who previously requested that the issuance of a water quality certification and storm water coverage to Renaissance at Colony Park – Phase III (Costco) be revoked have filed suit with the Madison County Chancery Clerk.

The next Permit Board meeting will be held on February 12, 2019, 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.

E-Verify Website/Service Unavailable During Federal Government Shutdown

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“E-Verify”—the U.S. Government’s federal electronic employment eligibility verification service—has “expired”  due to a lapse in funding.  As a result, the e-Verify site and its services are not functioning and will not be available to participating U.S. employers during the partial shutdown of the federal government that began December 22, 2018.

The U.S. Department of Homeland Security (DHS), the federal agency that oversees the program, reported that “information on this website may not be up to date. Transactions submitted via this website might not be processed and we will not be able to respond to inquiries until after appropriations are enacted.” As a result, DHS announced that the website (www.e-verify.gov) will not be actively managed and will not be updated until after funding is restored.

During the shutdown, U.S. employers will not be able to:

  • Enroll in the program;
  • Access their E-Verify accounts;
  • Create a case;
  • View or take action on any case;
  • Add, delete or edit accounts; or
  • Reset passwords, edit company information, terminate accounts, or run reports.

Conversely, workers will not be able to resolve any E-Verify Tentative Nonconfirmations (TNCs) during the shutdown. In addition, “myE-Verify” will be unavailable and employees will not be able to access their myE-Verify accounts.

To minimize the burden on both employers and employees, DHS announced that:

  • The three-day rule for creating E-Verify cases is suspended for cases affected by the unavailability of the service.
  • The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs.

As with prior shutdowns, additional guidance regarding the three-day rule and time period to resolve TNC deadlines will be provided once operations resume.

Employers will not be penalized for any delays in creating E-Verify cases. However, the shutdown does not affect an employer’s responsibility to verify employment eligibility. Employers must still complete the Form I-9 no later than the third (3rd) business day after an employee starts work for pay and comply with all other Form I-9 requirements.

As a result of the shutdown and the unavailability of E-Verify, participating employers are warned not to take any adverse action against employees while an E-Verify case remains in an unresolved status. Federal contractors with the Federal Acquisition Regulation (FAR)/E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.

January 2, 2019 is the last day of the Republican-controlled 2017-2018 Congress. Democrats take control of the United States House of Representatives, effective January 3, 2019.

New Overtime Rule Proposal from Department of Labor Slated for Spring 2019

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Last week, the Trump Administration published its Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions.  In it, the Trump Administration formally announced  the U.S. Department of Labor’s (“DOL”) intention to issue a Notice of Proposed Rulemaking (NPRM) in March 2019 “to determine the appropriate salary level for exemption of executive, administrative and professional employees.”  In its Spring 2018 Regulatory Agenda, the Administration had previously targeted January 2019 for the release of the NPRM.

Many will recall the rapid flurry of activity that accompanied the DOL’s previous attempt to overhaul the overtime exemptions to the Fair Labor Standards Act. In May 2016 , the Obama-era DOL “finalized” a change to the overtime rule that would have doubled the minimum salary level for the so-called “white collar” exemption from $23,660 to nearly $48,000 per year.  The proposed Final Rule never took effect.  Between May 2016 and November 2016, over 20 states and 50 business groups filed separate lawsuits  seeking to block enforcement of the Rule.

Then, in November 2016, a federal judge in Texas entered a nationwide preliminary injunction  blocking implementation of the highly controversial Rule—less than 10 days before the Rule was slated to take effect.  President Trump took office in January 2017, and the “new” DOL pushed the pause button on revisions to the overtime Rule.  In August 2017, U.S. District Judge Amos Mazzant of the Eastern District of Texas officially invalidated  the proposed Final Rule, thus temporarily halting the government’s highly-controversial attempt to expand overtime eligibility for millions for public and private sector employees.

Since that time, Labor Secretary Alexander Acosta, who assumed the post in late April 2017, repeatedly indicated that he favored some increase of the minimum salary threshold for exemption. In July 2017, the DOL began seeking public comment on a freshly revised overtime rule, publishing a Request for Information in the Federal Register.  The comment period closed in September 2017.

So, it appears that the Trump Administration is finally ready to unveil its proposal to revise a rule that was last modified in 2004 (and before that, in 1975). So what should employers expect in a new overtime rule?

  • Likely an increase in the minimum salary for exemption – but not nearly as drastic as the 2016 proposed Rule. Most commentators expect the increase to be something in the low-to-mid $30,000s. This would be consistent with Secretary Acosta’s comments on the issue, but still considerably lower than the increase proposed by the Obama Administration. Notably, the Society for Human Resource Management (SHRM) officially endorsed modestly raising the threshold to $32,000. Such an increase would still be lower—in some cases, significantly lower—than the current state law minimum salaries for exemption, such as New York (where the state minimum for exempt executive and administrative employees is set to climb to $58,500 at the end of 2018).
  • Modernization of examples within the Rule for application to the current workplace. With its most recent revision in 2004, the DOL included a number of new examples to assist employers in applying the tests. It would make sense to revisit those examples, and to consider additional examples, given how the workplace has evolved in the last 15 years.

Many commentators feel that the new proposed rule—whatever it may be—is not likely to take effect until early 2020. In all likelihood, the Trump Administration’s DOL will give employers plenty of lead time to plan and prepare for any increases in the minimum salary for exemption.  Regardless, employers need to be mindful of the potential changes and ready to implement them when the time comes, as 2019 looks to be an eventful year.

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