Brunini Law

Mississippi Environmental Quality Permit Board

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Summary of Meeting Held July 14, 2020

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

OFFICE OF GEOLOGY

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

Surface Mining Bond Releases

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

Surface Mining Transfer

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

Other Business

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

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

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 June 25, 2020

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

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

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

Certifications Approved since the last report 

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

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

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.

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 May 28, 2020

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

FY2021 Title V Fee Recommendation

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

Commission Approval of Brownfield Agreement Completion

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

Commission Approval of Brownfield Agreement Completion

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

Commission Approval of Brownfield Consulting Firm

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

Leeaf Environmental, LLC

2301 Whitney Ave

Gretna, LA 70056

Certifications Approved since the last report

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

Administrative Orders

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

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

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.

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

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

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

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

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

The permit must contain:

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

§ 7661c(a) (emphasis added).

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

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

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

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

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

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

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

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

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

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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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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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.

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