Brunini Law

Mississippi Environmental Quality Permit Board

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

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

Following a prepared agenda, items considered were as follows:

OFFICE OF GEOLOGY

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

Surface Mining Bond Releases

Permittee County Permit Staff Recommendation
Meggs Dirt & Gravel, LLC Attala P10-008 Initial 60%
Milton Chad Coffey Union P07-014T Final 80%
Milton Loper Madison P94-038 Final 10%
Milton Loper Madison P89-010 Final 90%
Milton Loper Madison P93-100 Final 10%
Joe McGee Construction Co. Madison P11-024 Final 10%
Joe McGee Construction Co. Rankin P14-022 Initial 90%

Surface Mining Permit Transfer

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

OFFICE OF POLLUTION CONTROL

401/STORMWATER BRANCH

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

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

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

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

AIR II BRANCH

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

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

Other Business

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

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

The next Permit Board meeting will be held on April 14, 2020, at 9 a.m.

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

If you have any questions concerning the content of a newsletter, or if you would like further information about the matters addressed in a newsletter, please contact John Milner, the Brunini Firm Environmental Practice Group leader, at jmilner@brunini.com or (601) 960-6842.

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CORONAVIRUS AND THE INTERRUPTION OF YOUR BUSINESS

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As rapidly as the coronavirus is spreading its footprint across the globe, businesses of all shapes and sizes are closing their doors … and losing income.  Unfortunately, Mississippi businesses are not exempt from this fast moving reality.  Indeed, coffee shops, boutiques, restaurants, office complexes, and a variety of other businesses across the State have been forced to drastically change their operations or, in some cases, completely shutter their businesses in response to the coronavirus pandemic and the related government directives concerning travel and social distancing.  As a result, many companies are already reporting lost profits, as well as a significant concern about the future of their businesses.

Fortunately, most companies carry a commercial property insurance policy, which typically includes not only coverage for property damage but also coverage for lost profits incurred as a result of damage to the covered property.  In other words, a business may have coverage for its coronavirus lost profits through its commercial property policy.  To know that, an insured should first review its policy to determine if it contains any of the following types of coverages which are frequently included in a commercial property policy.

Business Income/Interruption 

Business Income/Interruption Coverage provides coverage for the loss of income an insured sustains as a result of a suspension of an insured’s operations.  However, most policies require that the suspension stem from “direct physical loss or damage” caused by a “covered peril” (typically theft, fire, wind, falling objects or lightning) to the specific covered property.  This type of coverage is most commonly found in circumstances where an insured’s covered property is damaged by a fire, or perhaps a storm, forcing the insured to suspend its operations for a period of time.  In that scenario, the fire or storm damage to the subject property would be readily apparent, and assuming it is a covered peril, the claimant would have a strong claim for the income lost during the restoration period.  However, a claim for lost income as a result of the coronavirus will be much more complex.

First, an insured will need to demonstrate “direct physical loss or damage” to its covered property.  Given the nature of the coronavirus, however, there likely will be no apparent damage to the property.  So, insureds will likely contend that, regardless of its visibility or lack thereof, the virus is within their workplace – albeit at a microscopic level – and that it is has in fact damaged their covered property.

Courts have heard similar arguments in other contexts (e.g. asbestos, gasoline fumes, etc.) and reached varying conclusions.  Some have sided with the insureds that the contaminant damaged the property, while others agreed with the insurers that the contaminant had not damaged the insured’s property.  This determination, which will involve a detailed analysis of the relevant policy and applicable law, will be the critical issue in evaluating these claims for coverage.

Next, an insured should review its policy to determine if it excludes coverage for business interruption claims based on communicable diseases.  Due to the SARS outbreak in 2003, the insurance industry purportedly paid out a significant amount of claims based on “business interruptions” caused by SARS.  After the SARS outbreak, and to avoid a repeat, the insurance industry began excluding losses incurred by communicable disease.  Perhaps most importantly, in 2006, the heavily relied upon Insurance Services Office (ISO) issued form CP 01 40 07 06 excluding “loss or damage caused by or resulting from any virus, bacterium, or other microorganism that induces or is capable of inducing physical distress, illness or disease.”  Determining whether the insured’s policy contains this exclusion will be a critical component of any coverage analysis.

Contingent Business Interruption

Commercial property policies routinely include coverage for disruptions in an insured’s supply chain.  This coverage applies when damage occurs not to the insured’s property but to the property of others relied on by the insured to supply materials to the insured or its customers.  Again, it is important to note that these policies usually require damage or physical loss caused by a covered peril to the supplier’s property.  As with the Business Income/Interruption claim, the specific language of the policy will be critical in this analysis.

Order of Civil Authority

Many commercial property insurance policies provide coverage for business income losses sustained when a “civil authority” prohibits or impairs access to the policyholder’s premises.  Some of these policies do not require “physical loss” to the insured’s covered property, and those that do sometimes do not require that the physical loss occur to the insured’s own property.  Thus, if a governmental authority – federal, state, or local – prohibits or even limits access to an area including an insured’s business, the insured may have coverage for its loss of income under its “civil authority” coverage.  Yet again, analysis of the specific language in the policy and applicable law will be critical in determining coverage.

The First Coronavirus Coverage Case

On March 16, 2020, Oceana Grill in New Orleans, Louisiana filed what is thought to be the first lawsuit – of many more to come – dealing with a coronavirus business interruption coverage dispute (Cajun Conti, LLC, et al. v. Certain Underwriters at Lloyd’s London, et al., Civil District Court for the Parish of Orleans, Louisiana).

In its Petition for Declaratory Judgment, Oceana Grill requested a declaration of coverage for coronavirus-caused losses under a business interruption policy.  Oceana contends that it purchased an “all risk policy” from Lloyd’s of London, “which covers all risks unless clearly and specifically excluded” and further contends that “the policy does not provide any exclusion due to losses, business or property, from a virus or global pandemic.”

With respect to harm caused by the virus, Oceana contends that:

[T]he scientific community, and those personally affected by the virus, recognize the Coronavirus as a cause of real physical loss and damage….The virus is physically impacting public and private property, and physical spaces in cities around the world….The global pandemic is exacerbated by the fact that the deadly virus physically infects and stays on the surface of objects or materials, ‘fomites,’ for up to twenty-eight days, particularly in humid areas below eighty-four degrees….It is clear that contamination of the insured premises by the Coronavirus would be a direct physical loss needing remediation to clean the surfaces of the establishment.

Oceana also pointed out that the Louisiana Governor issued a statewide order banning gatherings of 250 or more people and the New Orleans Mayor issued additional operating restrictions on businesses.

For these reasons, Oceana has asked the Court to declare that:

  1. The policy provides coverage to Plaintiffs for any future civil authority shutdowns of restaurants in the New Orleans area due to physical loss from Coronavirus contamination; and
  2. The policy provides business income coverage in the event that the coronavirus has contaminated the insured’s premises.

This will be an important case to monitor as the coronavirus crisis and resulting business interruption coverage disputes continue.

The Brunini attorneys are closely monitoring developments in the coronavirus crisis and are counseling clients through the various legal and business issues involved in the crisis.

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A Message from Brunini to our Clients and Friends (COVID-19)

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As we all work to address the growing personal and business challenges presented by COVID-19, Brunini wants to assure our clients, friends, and the public that we will continue providing top-notch legal services uninterrupted by the ongoing public health crisis.  The firm activated its business continuity policies and procedures some time ago, and we are taking every precaution possible to protect the health, safety and welfare of our clients, the entire Brunini Team and their families.  Among other protective measures:

  • Brunini lawyers and staff may work remotely and securely, as may be needed for each individuals’ circumstances, to ensure we continue to serve our clients’ legal needs without interruption;
  • Brunini has implemented enhanced cleaning efforts to protect our lawyers, staff, clients and families, and encourages safe practices and hygiene to minimize the person to person spread of the coronavirus;
  • For some time Brunini has limited non-essential travel of its lawyers and staff, and has established procedures for employees to self-monitor and self-quarantine in the event of potential exposure in high-risk areas; and
  • Brunini encourages social distancing in our practice, including promoting the use of remote meeting technology to help our lawyers and clients avoid unnecessary exposure to potential risks, and we are prepared to adjust our means of communicating as may be needed to suit clients’ specific needs and capabilities.

We recognize that our clients, friends, and the public are being impacted by this challenging public health crisis and are dealing with many difficult and novel business issues.  We are here to help with employment concerns, tax issues, insurance coverage questions or any other legal assistance you might need.  Contact information is available on our website (www.brunini.com), or you may call (601)948-3101 for assistance in reaching any member of our team.

Mississippi Commission on Environmental Quality – Summary of Meeting Held November 15, 2019

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The Mississippi Commission on Environmental Quality (“MCEQ”) convened at 9:00 a.m., on November 15, 2019, at the offices of the Mississippi Department of Environmental Quality in Jackson.  The Commission approved minutes from the previous meeting held on August 22, 2019.  Following a prepared agenda, items considered were as follows:

 

Establishment of the Lignite Mining Fee for Liberty Fuels Company, LLC for the Liberty Mine in Kemper County for State Fiscal Year 2020;

Establishment of the Lignite Fee for the Mississippi Lignite Mining Company for the Red Hills Mine in Choctaw County for State Fiscal Year 2020;

Establishment of the Lignite Fee for the Mississippi Lignite Mining Company for the Red Hills Mine Area 3 in Choctaw County for State Fiscal Year 2020

 

MDEQ Staff recommended and the Commission approved that (1) the Liberty Fuels Company, LLC Lignite Mining Fee for the 2020 state fiscal year be set at $125,000, which is the same as for state fiscal year 2019; (2)  the Mississippi Lignite Mining Company Lignite Mining Fee for the 2020 state fiscal year be set at $125,000, which is a decrease of $50,000 from the fee for state fiscal year 2019; and (3) a new Lignite Mining Fee of $50,000 for the proposed Mississippi Lignite Mining Company, Red Hills Mine Area. This fee is necessary to cover the additional staff resources/costs associated with an application review related to a new surface coal mining application. These amounts will cover approximately 50% of the anticipated costs of administering the federally-approved coal mining program in Mississippi; the remaining approximately 50% of the cost will be covered by a federal Office of Surface Mining Reclamation and Enforcement (“OSMRE”) grant. These fees will cover 100% of the anticipated cost of administering the program above the amount of the federal OSMRE grant.

 

 

Commission Approval of Brownfield Agreement

 

MDEQ Staff recommended and the Commission approved the Brownfield Agreement between the Commission and Everest, LLC regarding the remediation of brownfield property located at 800 Central Street in Water Valley, Mississippi. The administrative record for this environmental response project is referred to as the former Water Valley Manufacturing site. The proposed Brownfield Agreement Site previously operated as a textile manufacturer. Assessments have detected the presence of chlorinated solvents in the groundwater beneath the site and asbestos containing material within onsite structures. Therefore, remediation of the proposed Brownfield Agreement Site is necessary. The proposed use of the Site after completion of all remediation will be a school as an expansion site for the Base Camp Coding Academy. The staff of the MDEQ has evaluated the Brownfield Agreement and believes that, with the conditions and restrictions contained within the Brownfield Agreement, the Site will be in compliance with applicable State and Federal laws and standards and will be protective of the public health and the environment.

Triennial Review of Mississippi’s Water Quality Standards (WQS): Revising Waterbody Classifications for Mississippi’s Surface Waters

 

MDEQ Staff provided an overview of the three new proposed waterbody classifications. Waterbody classifications are one of the required components within the state’s WQS regulations. These classifications describe the goals or expectations of a waterbody based on how that waterbody is used. Mississippi’s current waterbody classifications include Fish and Wildlife Support, Recreation, Public Water Supply, Shellfish Harvesting, and Ephemeral Waters. In an effort to more accurately characterize the waterbodies within the State of Mississippi, three additional classifications have been developed for addition to the state’s WQS as part of the current triennial review.  They are (1) Fish and Wildlife Modified; (2) Drainage Waters; and (3) Outstanding Mississippi Waters. The addition of these new proposed classifications will allow MDEQ to more accurately categorize our state waters and set appropriate goals for restoration and/or protection of these resources.  The next steps include a comment period beginning in January with a public hearing to be held after the comment period has ended.  This will then be submitted to EPA after the required comment period, public hearing and Commission approval. This agenda item was presented for informational purposes only.

 

Modification of Hinds County Solid Waste Management Plan

 

The Commission’s designated Hearing Officer, Doug Levanway presented his Recommendations related to the evidentiary hearing which was held on September 19, 2019, regarding a challenge to Commission Order No. 6772-17 to approve the modification of the Hinds County Solid Waste Management Plan to allow for the expansion of the Faircloth Class I Rubbish Site. The evidentiary hearing was held along with a Motion hearing which was held on September 16, 2019. Pursuant to Miss. Code Ann. Section 49-17-33, the Hearing Officer has the authority to conduct the hearings in the name of the Commission and provide findings of fact and a recommended decision for the Commission’s consideration at the Commission meeting. At the evidentiary hearing, MDEQ staff recommended that Commission Order No. 6772-17 be affirmed. 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 affirmed the final decision in this matter after reviewing the provided record which includes the Petition for Hearing, the transcript of the Motion Hearing, the transcript of the Evidentiary Hearing, exhibits to the transcripts, Motions to Intervene, Motions in Limine, Responses to Motions, witness lists, and the Hearing Officer’s Findings of Fact and Recommended Decision. Petitioner Bill Moore and the intervenors (Hinds County and Faircloth Rubbish Landfill, Inc.) were invited to attend the meeting on November 15, 2019, but the record in this matter is closed.

 

Certifications Approved since the last report

 

Type Number
Asbestos Certifications 516 certifications
Lead Paint Certifications 286 certifications
Underground Storage Tanks (UST) Certifications 19 certifications to those who install, alter, or remove underground storage tanks
Wastewater Operator Certifications 126
Emergency Clean-Up Expenses 19

 

Administrative Orders

 

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

 

OTHER BUSINESS – Gary Rikard, MDEQ Executive Director noted that the next Commission meeting is scheduled for December 26, 2019.  Although the Commission approved that date, it is likely that the Commission will not meet on that date.

 

 

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

 

IRS Circular 230 Notice

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

 

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Mississippi Environmental Quality Permit Board

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Summary of Meeting Held November 12, 2019

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

The Board approved minutes from the September meeting and the non-controversial actions/ certifications completed by the staff since the September 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
Eutaw Construction Company, Inc. Hinds P17-017 Additional 10%
Green Brothers Gravel Company, Inc. Marion P02-052A No release
Green Brothers Gravel Company, Inc. Marion P08-010AAA Additional 20%
Green Brothers Gravel Company, Inc. Copiah P96-072 Additional 20%
Green Brothers Gravel Company, Inc. Copiah P00-026A Additional 20%
Green Brothers Gravel Company, Inc. Copiah P93-053A Additional 10%
Green Brothers Gravel Company, Inc. Copiah P97-053TA Additional 10%
Green Brothers Gravel Company, Inc. Copiah P08-015AAA Additional 25%
Green Brothers Gravel Company, Inc. Copiah P09-017 Additional 10%
Green Brothers Gravel Company, Inc. Copiah P16-006 Additional 80%
Green Brothers Gravel Company, Inc. Copiah P16-026 Additional 20%

Surface Mining Permit to Rescind

In accordance with MDEQ staff recommendations, the Board approved the following transfer:

Permittee County Permit
R&F Materials Rankin P92-104
R&F Materials Rankin P92-126

OFFICE OF POLLUTION CONTROL  – No Items to be Presented

Other Business

Roy Furrh, MDEQ Legal Counsel reported that the NCL Waste, LLC (“NCL”) application is scheduled to be heard during the December Permit Board meeting. After discussion among Board members, it was decided that MDEQ Staff will present the application at 10:30 (after the regularly-scheduled meeting).  NCL can make its presentation after the Staff presentation if it chooses to do so.  Since it is anticipated that several visitors in opposition will be in attendance, the Board will then recess for lunch and public comments will be heard when it at 1:00.

The next Permit Board meeting will be held on December 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 Environmental Quality Permit Board

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Summary of Meeting Held October 8, 2019

The Mississippi Environmental Quality Permit Board (“Board”) convened its regular monthly meeting at 9:00 a.m. on October 8, 2019, at the offices of the Mississippi Department of Environmental Quality, in Jackson. Chris McDonald chaired the meeting.

The Board approved minutes from the September meeting and the non-controversial actions/ certifications completed by the staff since the September 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
Pierce Construction Hinds P16-023 Initial 50%

Surface Mining Permit to Transfer

In accordance with MDEQ staff recommendations, the Board approved the following transfer:

Permittee County Permit
C&S Construction Company to James A. Hodges Construction, Inc. Lee P07-024

OFFICE OF POLLUTION CONTROL

ENVIRONMENTAL PERMITS DIVISION – 401/STORMWATER BRANCH

Drying Facility Assets Holding, LLC – Issuance of Water Quality Permit (WQC2018031) and Modification of Stormwater Coverage (MSR106120), Pearl River County

MDEQ Staff recommended and the Board approved the above-referenced applications with conditions.  Staff stated that, as a result of notification of contiguous land owners and public notice, one written comment was received expressing concerns regarding flooding, zoning and noise. No one in opposition appeared at the meeting.   Because the application is complete, MDEQ staff recommended issuance of the Permit.

Petitioner Stephen M. Maloney’s Request for Revocation of Renaissance at Colony Park, LLC’s Clean Water Act Section 401 Water Quality Certification

Other Business

Roy Furrh, MDEQ Legal Counsel reported that requests for Evidentiary Hearing have been received by Senator Dawkins and by a professor at the University of Mississippi School of Law regarding Mississippi State Port Authority, North Port Property in Harrison County. He asked the Board members to check their calendars and let him know if they would be available for a special meeting on Thursday, February 20, 2020.

Mr. Furrh reminded the Board that Stephen Maloney, 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 filed suit with the Madison County Chancery Clerk and informed the Board that the Board’s decision to affirm its issuance of the Dry Litter Poultry Animal Feeding Operation Multimedia General Permit (No. MSG 201968) and the Large Construction Storm Water General Permit (No MSR107600) to Jimmy Le d/b/a Le Poultry, Pike County, Mississippi has been appealed to the Pike County Chancery Court. Mr. Furrh is working with the attorneys to get briefing schedules for both.

The next Permit Board meeting will be held on November 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.

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Mississippi Environmental Quality Permit Board

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Summary of Meeting Held September 10, 2019

The Mississippi Environmental Quality Permit Board (“Board”) convened its regular monthly meeting at 9:00 a.m. on September 10, 2019, at the offices of the Mississippi Department of Environmental Quality, in Jackson. Jennifer Whittmann 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
Buchanan Timber Holdings, LLC Pontotoc P07-009 Final 10%
Joe McGee Construction Co., Inc. Desoto P12-018 Final 10%

Surface Mining Permit to Rescind

In accordance with MDEQ staff recommendations, the Board approved the following rescission:

Permittee County Permit
Bayou Pipeline, Inc. Bolivar P11-001
Bayou Pipeline, Inc. Bolivar P10-018A
Bayou Pipeline, Inc. Bolivar P05-018

OFFICE OF LAND AND WATER RESOURCES

Staff presented a Power Point Presentation providing an update on Delta Water Resources issues and the Board approved the Delegation Memorandum of Agreement between the Mississippi Environmental Quality Permit Board and the Yazoo Mississippi Delta Joint Water Management District.

OFFICE OF POLLUTION CONTROL

WASTE DIVISION SOLID WASTE PERMITTING BRANCH and ENVIRONMENTAL PERMITS DIVISION AIR II AND WATER II BRANCHES (Items presented jointly between EPD and Waste Divisions)

Waste Management of Tunica Landfill, Inc. (Tunica Landfill) – Reissuance of Solid Waste Mgmt. Permit Tunica County (SW0720010459); Reissuance of Title V Air Permit (2660-00033); Reissuance of NPDES Storm Water Permit (MSS053317); and Reissuance of Waste Water Pretreatment Permit (MSP091373)

MDEQ Staff recommended and the Board approved the above-referenced applications.  Staff stated that, as a result of notification of contiguous land owners and public notice, one written comment was received by the Tunica County Board of Supervisors regarding the elevation. This matter was already addressed in the Application but was further memorialized. No one in opposition appeared at the meeting.   Because the application is complete, MDEQ staff recommended issuance of the Permit.

Denali Water Solutions, LLC (Humphreys County Industrial Land Application Site) – Issuance of Solid Waste Mgmt. Permit  (SW0270030577)

MDEQ Staff recommended and the Board approved the above-referenced application. Denali Water Solutions, LLC requested the permit for land application of solid waste including industrial food processing materials and food processing sludge from MDEQ permitted facilities to be applied on approximately 2000 acres on which row crops are to be grown. Sludge can also be temporarily stored in currently-existing and approved, storage lagoons. As a result of notification of contiguous land owners and public notice, one written comment was received by e-mail and this person also attended the public hearing. Concerns were expressed regarding the odors from the previous operators of the facility where the currently-existing storage lagoons are located. No one in opposition appeared at the meeting.   Because the application is complete, MDEQ staff recommended issuance of the Permit.

Riemann Funeral Homes Inc, South MS Crematory – Buffer Zone Variance Request by Harrison County (1020-00190)

Staff presented but did not provide a recommendation to the Board concerning an application for buffer zone variance from 150-foot setback to 98 feet. Staff stated that contiguous land owners were contacted. A representative from the funeral home visited with the abutting property owner regarding the variance, and the property owner stated in an e-mail that he had no objection to the variance. The Board approved the variance.

Other Business

Staff presented the proposed Findings of Fact and Conclusions of Law for consideration regarding the Permit Board’s adoption of the Report and Recommendation of Hearing Officer recommending summary affirmation of the issuance of Coverage under the State of Mississippi Dry Litter Poultry Animal Feeding Operation Multimedia General Permit (No. MSG 201968) and the Large Construction Storm Water General Permit (No MSR107600) to Jimmy Le d/b/a Le Poultry, Pike County, Mississippi. The Permit Board members present unanimously approved the proposed FOFCOL.

The next Permit Board meeting will be held on October 8, 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 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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