Brunini Law

Mississippi Environmental Quality Permit Board Summary of Meeting Held September 12, 2017

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The Mississippi Environmental Quality Permit Board (“Board”) convened its regular monthly meeting at 9:00 a.m. on September 12, 2017, at the offices of the Mississippi Department of Environmental Quality, in Jackson.  Dennis Riecke chaired the meeting.

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

Following a prepared agenda, items considered were as follows:

OFFICE OF POLLUTION CONTROL

 Construction/Water II Branch

Design  Precast and  Pipe, Inc.:

Staff recommended and Board approved the Issuance of Coverage under the Ready Mix Concrete General Permit (MSG110319) in Harrison County.

Energy/Water II Branch

Mississippi  Lignite Mining Company; (Visitors):

Staff recommended and Board approved the Request for NPDES Compliance ScheduleVariance for Selenium (MS0054046) in Choctaw County.

OFFICE OF GEOLOGY

In accordance with MDEQ staff recommendations, the Board approved the following surface mining bond releases:

 

Permittee County Permit Staff Recommendation
Joe McGee Construction Co., Inc. Madison Pll-024 Initial 90%
Standard Gravel Company, Inc. Forrest P03-008 Final 90%
TCB Construction Company, Inc. Hancock P93-022 Initial 30%
Edge Construction LLC Lafayette P13-013 Initial 90%

 

 In accordance with MDEQ staff recommendations, the Board approved the following surface mining permits to transfer:

 

Permittee County Permit
BASF Corporation transferring POS-004, P86-015,  P88-013,  P92-071, and P99-042AAA to EP Engineer Clays Corporation Monroe P05-004T P86-015T P88-013T P92-071T P99-042AAT

 

 OTHER BUSINESS:

Roy Furrh, MDEQ Legal Counsel, noted that the Commission members will have their pictures taken at the November 14, 2017 meeting and confirmed that everyone will be in attendance.

The next Permit Board meeting will be held on October 10, 2017, at 9 a.m.

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BREAKING – U.S. FEDERAL JUDGE OFFICIALLY INVALIDATES OBAMA-ERA OVERTIME RULE CHANGE

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Late Thursday afternoon (August 31, 2017), a U.S. federal judge officially invalidated the Obama administration’s highly-controversial attempt to expand overtime eligibility for millions for public and private sector employees.  In November 2016, U.S. District Judge Amos Mazzant of the Eastern District of Texas made national news when he issued a nationwide preliminary injunction blocking implementation of a proposed rule that was set to take effect on December 1, 2016.

In September 2016, two separate lawsuits were filed  in U.S. District Court in the Eastern District of Texas challenging the legality of the U.S. Department of Labor’s (DOL) proposed changes.  The lawsuits—one filed by a group of 21 states and the other filed by a conglomerate of over 50 nationwide business groups and trade organizations—both sought to temporarily enjoin and permanently strike the DOL’s Proposed Overtime Rule from taking effect.  The federal court later consolidated the two suits into one case.

Judge Mazzant’s November 2016 ruling temporarily prevented the DOL from enforcing the Proposed Overtime Rule, which would have significantly expanded overtime eligibility for millions for public and private sector employees.  On Thursday, Judge Mazzant followed his preliminary injunction by granting summary judgment in favor of the plaintiffs.

If enacted, the Proposed Rule would double the minimum salary threshold—from the current $23,660 to the proposed $47,476—required for an employee to qualify for the Fair Labor Standards Act’s (FLSA) white collar exemptions.   In his ruling, Judge Mazzant ruled that the “significant increase” contemplated in the Proposed Overtime Rule would essentially render meaningless the duties, functions, or tasks that an employee performs if their salary falls below the new minimum salary level.  The Court further agreed with the states and business groups which argued that the DOL had “exceeded its authority and gone too far with the [Proposed Overtime Rule].”  According to Judge Mazzant, the Obama-era DOL proposal made overtime status “predominately dependent on a minimum salary level, thereby supplanting an analysis of an employee’s job duties.”

Representatives of the states and business groups who initiated the legal challenge, as well as those from the now Trump-era DOL, have yet to comment.  However, given the Trump administrations’ recent statements favoring an overhaul of the FLSA’s exemption analysis, the Court’s ruling on Thursday likely spelled the final chapter in the life of the much-maligned Proposed Overtime Rule.

Mississippi Environmental Quality Permit Board Summary of Meeting Held August 8, 2017

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The Mississippi Environmental Quality Permit Board (“Board”) convened its regular monthly meeting at 9:00 a.m. on August 8, 2017, at the offices of the Mississippi Department of Environmental Quality, in Jackson.  Dennis Riecke chaired the meeting.

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

Following a prepared agenda, items considered were as follows:

OFFICE OF POLLUTION CONTROL – No items.

OFFICE OF GEOLOGY

In accordance with MDEQ staff recommendations, the Board approved the following surface mining bond releases:

 

Permittee County Permit Staff Recommendation
Buchanan  Timber  Holdings, LLC Pontotoc P07-009 Initial 10%
Neely Trucking & Excavating Rankin P05-019AT No Additional Release
Joe McGee Construction Co., Inc. Winston P13-015 Final 30%
Joe McGee Construction Co., Inc. Newton Pl0-031 Final 40%
Joe McGee Construction Co., Inc. Madison P06-024 Final 10%
Oddee Smith Construction, Inc. Lincoln P99-018 Final 50%
Oddee Smith Construction, Inc. Lincoln P02-047 Final 65%
Oddee Smith & Sons, Inc. Lincoln P98-007 Final 70%
Oddee Smith & Sons, Inc. Lincoln P05-014 Final 50%

 In accordance with MDEQ staff recommendations, the Board approved the following surface mining permits to cancel:

 

Permittee County Permit
William Adair Marshall P09-029
Baker Ready Mix-Construction- Landscaping Winston P07-029
Ellis Construction Company, Inc. Lowndes P02-055A
The City of Brandon, Crossgates Project Rankin P16-024

 In accordance with MDEQ staff recommendations, the Board approved the following surface mining permits name change:

 

Permittee County Permit
Boral Bricks Inc. name changed to Meridian Brick, LLC Kemper P85-014, P85-020, P86-012, P92-099, P04- 046

 In accordance with MDEQ staff recommendations, the Board approved the following surface mining permits to transfer:

 

Permittee County Permit
Wagoner Gravel, LLC., transfers to Camo Construction Company, Inc. permit number will be P04-039T Adams P04-039
Edgin Construction Company Transfers to Self-Storage 61, LLC permit number will be P16-013T Adams PI6-013
Marion Clay and Gravel, LLC, transfer to Heritage Sand and Gravel LLC permit number will be Pll-031T Marion Pll-031

In accordance with MDEQ staff recommendations, the Board approved the following surface mining permits to rescind:

 

Permittee County Permit
Old Hickory Clay Company Tippah P09-022
Hedges Plantation Land, LLC Adams P17-006

OTHER BUSINESS:

Roy Furrh, MDEQ Legal Counsel, welcomed David Dockery to the Permit Board.  Mr. Dockery was recently selected as head of the Office of Geology and the State Geologist, replacing Michael Bograd who recently retired.

The next Permit Board meeting will be held on September 12, 2017, at 9 a.m.

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Mississippi Environmental Quality Permit Board Summary of Meeting Held July 12, 2017

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The Mississippi Environmental Quality Permit Board (“Board”) convened its regular monthly meeting at 9:00 a.m. on July 12, 2017, at the offices of the Mississippi Department of Environmental Quality, in Jackson.  Dennis Riecke chaired the meeting.

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

Following a prepared agenda, items considered were as follows:

OFFICE OF POLLUTION CONTROL – No items.

OFFICE OF GEOLOGY

In accordance with MDEQ staff recommendations, the Board approved the following surface mining bond releases:

Permittee County Permit Staff Recommendation
Baker Ready Mix – Construction – Landscaping Winston P07-029 Additional 10%
Oddee Smith & Sons, Inc. Lincoln P92-062 Final 90%
Dickerson and Bowen, Inc. Amite P94-046 Additional 70%
Dickerson and Bowen, Inc. Franklin P94-047T Final 10%
Hammett Gravel Company, Inc. Yazoo P04-010 Additional 15%
Harris Construction Company Madison P02-060A Initial 50%

In accordance with MDEQ staff recommendations, the Board approved the following surface mining permits to rescind:

Permittee County Permit
Talbot Bros. Constr. Co. and Talbot Bros. Grading Co. DeSoto P10-004A

 In accordance with MDEQ staff recommendations, the Board approved the following surface mining permits to transfer:

Permittee County Permit
Phillips Trucking Company Transferred to BBR Mining, LLC Hancock P10-034

In accordance with MDEQ staff recommendations, the Board approved the following surface mining permits to modify:

Permittee County Permit
Surface Coal Mine Red Hills Modification Choctaw MS-002 Renewal 2

 OTHER BUSINESS:

Roy Furrh, MDEQ Legal Counsel announced the retirement of Harry Wilson, Chief of the Environmental Permits Division, Office of Pollution Control and named Krystal Rudolph as his replacement.

ELECTION OF BOARD CHAIRMAN AND VICE-CHAIRMAN FOR 2017-2018

Mr. Furr also clarified the minutes from the last Board meeting that The Board unanimously voted to “elect” and not “nominate” the following:

Chair – Dennis Riecke, Mississippi Department of Wildlife, Fisheries & Parks

Vice-Chairman – James Hoffmann, Office of Land and Water

The Board unanimously approved these revisions.

The next Permit Board meeting will be held on August 8, 2017, at 9 a.m.

 

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Mississippi Environmental Quality Permit Board Summary of Meeting Held June 13, 2017

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The Mississippi Environmental Quality Permit Board (“Board”) convened its regular monthly meeting at 9:00 a.m. on June 13, 2017, at the offices of the Mississippi Department of Environmental Quality, in Jackson.  Mr. Mike Bograd, RPG, chaired the meeting.

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

Following a prepared agenda, items considered were as follows:

OFFICE OF POLLUTION CONTROL – No items.

OFFICE OF GEOLOGY

In accordance with MDEQ staff recommendations, the Board approved the following surface mining bond releases:

 

Permittee County Permit Staff Recommendation
Milton Chad Coffee Union P07-014T Initial 20%
Foshee Construction Company, Inc. Madison P99-047 Additional 40%
Hammett Gravel Company, Inc. Yazoo P93-061 Initial 10%
Hammett Gravel Company, Inc. Yazoo P96-052 Initial 10%
Hammett Gravel Company, Inc. Yazoo P97-046 Initial 10%
Hammett Gravel Company, Inc. Yazoo P00-064 Initial 10%
Hammett Gravel Company, Inc. Yazoo POl-037 Initial 10%
Hammett Gravel Company, Inc. Yazoo P02-026 Initial 10%
Hammett Gravel Company, Inc. Yazoo P02-030AAA Initial 10%
Krystal Gravel, Inc. Copiah P79-002T2 Initial 20%
Krystal  Gravel, Inc. Copiah P02-043 Final 20%
Krystal  Gravel, Inc. Copiah P87-040T2 Additional 20%
Krystal Gravel, Inc. Copiah P92-107 Initial 50%
Krystal  Gravel, Inc. Copiah P94-103 No release
Krystal  Gravel, Inc. Copiah P95-069T2 Initial 10%
Krystal Gravel, Inc. Copiah P98-003 Final 10%
Krystal Gravel, Inc. Copiah P07-007 Initial 10%
Krystal Gravel, Inc. Copiah Pl0-027 No release
Krystal Gravel, Inc. Copiah P16-015 Initial 10%
Krystal Gravel, Inc. Copiah P16-032 No release
W. S. Newell Marshall Pl3-024 Initial 90%
W. S. Newell Marshall P13-025 Initial 90%
W. S. Newell Marshall P13-026 Initial 90%
W. S. Newell Marshall P14-007 Initial 90%
Oddee Smith & Sons, Inc. Lincoln P87-025 Final 50%
Oddee Smith & Sons, Inc. Lincoln POS-013 Final 15%
T.  L. Wallace Construction, Inc. Hinds PlS-010 Initial 90%

In accordance with MDEQ staff recommendations, the Board approved the following surface mining permits to cancel:

 

Permittee County Permit
Pat Fore Truck Lines, Inc. Harrison P95-082
Pat Fore Truck Lines, Inc. Harrison P95-083
AMO Construction. Inc. Tallahatchie P16-018

OTHER BUSINESS:

Lisa Ouzts, Senior Attorney with MDEQ, presented the proposed Findings of Fact and Conclusions of Law (“Findings of Facts”) for consideration regarding the evidentiary hearing held on March 14, 2017, in the matter of Drying Facility Assets Holding, LLC, Pearl River County,  Mississippi,  regarding the issuance, transfer, and modification of the Section 401 Water Quality Certification (WQC2012071), transfer of certificate of coverage under Mississippi’s Large Construction Storm Water General Permit (MSR106120), transfer of certificate of coverage under Mississippi’s Baseline Storm Water General Permit (MSR002071), and transfer of Permit to Construct Air Emissions Equipment (No. 2180-00052) to Drying Facility Assets Holding LLC, Pearl River County, Mississippi.  Staff previously circulated the proposed Findings of Facts to all parties and received only minor (non-substantive) edits.  Based on Staff recommendation, Board approved the Findings of Facts.

ELECTION OF BOARD CHAIRMAN AND VICE-CHAIRMAN FOR 2017-2018

The Board voted unanimously to elect the following:

Chair – Dennis Riecke, Mississippi Department of Wildlife, Fisheries & Parks

Vice-Chairman – James Hoffmann, Office of Land and Water

The next Permit Board meeting will be held on July 11, 2017, at 9 a.m.

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Recent Federal Court Ruling Indicates Coverage for LGBTQ-Related Conditions Under the Americans with Disabilities Act

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In May 2017, a federal district court judge from the Eastern District of Pennsylvania ruled that the Americans with Disabilities Act (“ADA”) may cover “gender dysphoria,” as well as other conditions related to “gender identity disorder.” Though seen as a departure from previously established law, this ruling could open the door to expanding employment protections to some transgender individuals under the ADA.

What is “Gender Dysphoria”

By now, the term “transgender” is a common term in our national vocabulary.  “Transgender” is an umbrella term for people whose gender identity and/or gender expression is different from cultural expectations placed on them due to their biologically-assigned birth gender. An issue more and more transgender individuals are seeking treatment for is known as “gender dysphoria.” The Human Rights Campaign defines “gender dysphoria” as “clinically significant distress caused when a person’s biologically-assigned birth gender is not the same, or does not match, the gender with which that person “identifies.”

Historical Treatment of LGBTQ Issues under the ADA

Historically, the ADA has not recognized LGBTQ-related conditions as covered disabilities. Specifically, Section 12211 of the ADA contains a number of exclusions—including “homosexuality” and “bisexuality” on the grounds that they are not “impairments” at all. The ADA also excludes “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; compulsive gambling, kleptomania, or pyromania; or psychoactive substance use disorders resulting from current illegal use of drugs.”

“Transsexualism” and “gender identity disorders not resulting from physical impairments” seem to be 1990s-era terms for the state of being what we call today “transgender.” And based on the other conditions that “transsexualism” and “gender identity disorders” are grouped with, it appears that in 1990, Congress considered these to be “anti-social” behaviors. Other “anti-social” behaviors not covered under the ADA include peeping, child molestation, compulsive stealing, and compulsively setting things on fire.

Recent Third Circuit Ruling – Blatt v. Cabela’s Retail, Inc.

On August 15, 2014, a transgender woman filed Title VII and ADA claims against her former employer, claiming that she had suffered disability discrimination and retaliation based on her “gender dysphoria.” In her case (styled Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-04822-JLS), the plaintiff alleged that her gender dysphoria was characterized by clinically significant stress and substantially limited one or more of her major life activities, including but not limited to, interacting with others, reproducing, and social and occupational functions.

The employer sought early dismissal of the ADA claims on the grounds that gender identity disorders are expressly excluded from coverage under Section 12211 of the ADA. In response, the plaintiff argued that excluding gender dysphoria from ADA protection violated the Equal Protection Clause of the Fourteenth Amendment—a particularly novel argument in light of recent U.S. Supreme Court, including the 2015 gay marriage opinion (Obergefell v. Hodges, 135 S. Ct. 2584 (2015)). However, the district court judge sidestepped this Equal Protection issue altogether.

Instead, the judge ruled that a plaintiff’s “gender dysphoria” could be an ADA-protected disability—despite the language in Section 12211 excluding “gender identity disorders not resulting from physical impairments”— if the dysphoria caused “clinically significant stress and other impairments.” In reaching its holding, the court noted that two categories of conditions are explicitly excluded from protection under the ADA: (1) non-disabling conditions concerning sexual orientation and identity (e.g., homosexuality and bisexuality), and (2) conditions associated with harmful or illegal conduct (e.g., pedophilia and kleptomania). The court then narrowly interpreted these exceptions and found that the ADA does not exclude protection of “conditions that are actually disabling but that are not associated with harmful or illegal conduct” – such as the gender dysphoria affecting the plaintiff.

In other words, the court ruled that a person with an ADA-excluded condition may also have medical conditions that are covered by the ADA. For many commentators, the judge relied on solid ADA-rationale applied to other conditions. For example, pregnancy is not an ADA-protected disability in itself. But if a pregnant woman develops a related condition such as preeclampsia (high blood pressure associated with pregnancy that can result in a stroke or permanent liver damage), she may have a protected disability based on the pregnancy-related medical condition, although not based on the pregnancy itself. Similarly, although homosexuality is not an ADA-protected disability, a gay man with HIV would have a disability based on the HIV condition.

Using the Blatt court’s rationale, a transgender individual with “gender dysphoria” would be no different.  For example, clinical depression caused by discrimination against an individual because he/she was transgender would clearly qualify as an ADA-protected condition under the rationale used in Blatt. Conversely, the individual’s transgender status—in and of itself—would not be entitled to ADA protection, as that is clearly excluded under Section 12211.

The court also noted that its interpretation of the ADA is consistent with the Third Circuit’s mandate that the ADA is “a remedial statute, designed to eliminate discrimination against the disabled in all facets of society. . . [and] must be broadly construed to effectuate its purposes.” Thus, the judge wrote any exceptions in the ADA “should be read narrowly in order to permit the statute to achieve a broad reach.”

This is yet another case in a recent wave of litigation concerning protections for LGBTQ individuals under the federal employment statutes. This ADA challenge represents a different approach to gender equity litigation that will warrant close monitoring to see how it impacts the development of jurisprudence—especially since it remains to be seen if the defendant will appeal the ruling, or if other jurisdictions will apply the Blatt rationale. In the meantime, employers should be mindful of their duties under the ADA to accommodate disabling impairments, even if the underlying condition is arguably not covered by the ADA.

 

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U.S. Department of Labor Withdraws Obama-Era Joint Employer/Independent Contractor Guidance

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On Wednesday, June 07, 2017, the U.S. Department of Labor (“Department”) withdrew two “guidance letters” previously issued by the Department during the Obama administration.  These guidance letters expressed a desire for “tighter standards” for determining joint employment, in an effort to limit the misclassification of workers as independent contractors.

The Department’s three sentence statement simply said that the two guidance letters issued by the Department in 2015 and 2016 were being withdrawn. Current Labor Secretary Alex Acosta said the agency would withdraw an administrator’s interpretation issued in 2015 aimed at curbing the misclassification of employees as independent contractors as well as another guidance document issued in 2016 on joint employment that called for greater scrutiny of business arrangements in which multiple companies might jointly employ workers. Despite its brevity, the announcement clearly signaled the Department’s intent to revert to its prior policies, saying the removal of the previous interpretations “does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law.”

The 2015 guidance letter narrowed the Department’s definition of “independent contractor,” by modifying the test from “control over the work” to a broader “economic realities” test.  At the time, the Department took the position that “most workers are employees under the FLSA’s broad definitions.”  Prior to this, the Department’s Wage and Hour Division looked at how much control an employer exercised over the worker. The more control an employer had (i.e., setting schedules, directing how and where the work was to be done, etc.), the more likely the worker would be considered an employee, and thus entitled to protection under the Fair Labor and Standards Act. The 2015 guidance said the Department would instead look at six economic factors to decide a worker’s status—each revolving around how economically dependent the worker was on the prospective employer.

The 2016 guidance letter offered a similar “re-interpretation” of the definition of “joint employment.” This guidance—which drew heated objections from a broad range of employers when it was issued—increased the likelihood that two employers would be found to be “jointly liable” for wage and hour compliance of an employee or group of employees. Under the 2016 guidance, the hours an employee worked for all joint employers would be aggregated for the purposes of determining overtime and compliance with other FLSA rules.

Importantly, these guidance letters did not have the force of law.  However, many courts have deferred to the Department’s interpretation.  This adds to the importance of the Department’s withdrawal of these earlier interpretations.

Mississippi Commission on Environmental Quality Summary of Meeting Held May 25, 2017

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The Mississippi Commission on Environmental Quality convened at 9:00 a.m. on May 25, 2017, at the offices of the Mississippi Department of Environmental Quality in Jackson.  The Commission approved minutes from the previous meeting held on February 23, 2017.  Following a prepared agenda, items considered were as follows:

Commission Approval of Brownfield Agreement

The staff recommended and the Commission approved the Brownfield Agreement between the Commission and WALM Properties, LLP regarding the remediation of brownfield property located at 1140 Industrial Access Road in West Point, Mississippi. The administrative record for this environmental response project is referred to as the Big Yank Building site. The impacted area is centered around a former chemical storage shed located in the southwest portion of the property. Assessments revealed the extent of contamination in the groundwater and soil at levels in excess of the Target Remediation Goals. Therefore, remediation of the Brownfield Agreement Site is necessary. The proposed use of the Site after completion of all remediation will be an administrative office and staging area for a transportation business based out of West Point, MS. 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.

Commission Approval of Brownfield Obligation Transfer

On June 1, 2012, the Commission reached a Brownfield Agreement (#6130-12) with NCI Building Systems, Inc. for the remediation of the CECO Building Systems facility in Columbus, Mississippi. In accordance with Rule 2.1.5.C of Part 3, Chapter 2: Final Regulations Governing Brownfield Voluntary Cleanup and Redevelopment in Mississippi, NCI Building Systems, Inc. and Grandview Investments, LLC jointly have provided a petition to the MCEQ that Grandview Investments, LLC has the financial, managerial, and technical resources to complete performance of the Brownfield Agreement obligations and agrees to complete this performance. The staff of the MDEQ reviewed the petition recommended that the Commission issue an order in accordance with the Brownfield Regulations approving the transfer of those obligations in Brownfield Agreement #6130-12 from NCI Building Systems, Inc. to Grandview Investments, LLC. CECO Building Systems continues to operate in the space, and will continue to operate in the space, leasing the land and building from Grandview Investments, LLC. Based on Staff recommendation, the Commission approved the Brownfield Obligation Transfer.

Commission Rescind Brownfield Agreement and Accompanying Environmental Covenant- Wal-Mart Real Estate Business Trust-Pascagoula, Jackson County

In the November 10, 2016 Commission Meeting, the staff presented the request from Wal-Mart Real Estate Business Trust to rescind Brownfield Agreement Order Number 6661 16. The Commission voted to table consideration of this matter until the next Commission meeting. Wal-Mart Real Estate Business Trust and the property owner, Estabrook Toyota, have been in negotiations since that time to finalize corrective action alternatives for the property prior to rescinding the Brownfield Agreement. The staff of the MDEQ evaluated the request to rescind the Brownfield Agreement Order and recommended that, in accordance with applicable State laws and standards, Wal-Mart Real Estate Business Trust is not responsible for remediation of the petroleum related contaminants in the groundwater and soil. Staff recommended the Commission rescind Brownfield Agreement Order Number 6661 16 between MDEQ and Wal-Mart Real Estate Business Trust and the accompanying Environmental Covenant.  Based on Staff recommendation, the Commission rescinded the Brownfield Agreement Order.

Serenity Lane, Pearl River County – Evidentiary Hearing held on October 17 and 18, 2016 – Hearing Officer’s Proposed Findings and Recommendations for Commission’s Consideration

The Commission’s designated Hearing Officer, Frank Spencer, presented his proposed Findings and Recommendations related to the Serenity Lane Evidentiary Hearing, which was held on October 17 and 18, 2016. The Commission was provided electronic access to the record of this matter, which is an exhaustion of administrative remedies case. The records include the transcript of the evidentiary hearing; exhibits submitted by the Petitioners (Residents of Serenity Lane Subdivision), MDEQ staff, and the Intervenors (Fort James Corporation); and previous Findings and Recommendations and Orders entered by the Hearing Officers. Additionally, the Commission members were provided with Hearing Officer Spencer’s proposed Findings and Recommendations following the evidentiary hearing. These documents were provided to allow the Commission time to review them in advance of the Commission meeting.

Establishment of the Lignite Mining Fee for Liberty Fuels Company, LLC for the Liberty Mine in Kemper County for State Fiscal Year 2018; 

Establishment of the Lignite Fee for the Mississippi Lignite Mining Company for the Red Hills Mine in Choctaw County for State Fiscal Year 2018

The Staff recommend and the Commission approved that the Liberty Fuels Company, LLC Lignite Mining Fee for the 2018 state fiscal year be set at $125,000, which is the same as for state fiscal year 2017. Staff recommended and the Commission approved that the Mississippi Lignite Mining Company Lignite Mining Fee for the 2018 state fiscal year be set at $125,000, which is the same as for state fiscal year 2017. This amount 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 grant. These fees will cover 100% of the anticipated cost of administering the program above the amount of the federal OSMRE grant. Staff will recommend that the Commission delegate the authority to sign the Orders to the Executive Director.

 Update Commission on the Volkswagen Settlement 

Lisa Ouzts, Senior Attorney with MDEQ, updated the Commission on the Volkswagen Settlement.   Pursuant to a settlement agreement with the U.S. government, Volkswagen will fund an Environmental Mitigation Trust (the “Mitigation Trust”) to fund projects that will reduce nitrogen oxide emissions by upgrading aging diesel-powered vehicles.  Wilmington Trust has been appointed Trustee for the Mitigation Trust and will work with the various parties to finalize the trust agreement which will require approval by the court.  Once the Mitigation Trust’s effective date has been established, the ball will start rolling on deadlines; however this date has not been accepted yet.  It is expected that Governor Bryant will appoint MDEQ as the lead agency for Mississippi, and MDEQ is currently working on a website to accept suggestions and funding requests; however, the website is not “live” at this time.

 CERTIFICATIONS APPROVED

Asbestos:                      332 certifications

Lead Paint:                   163 certifications

Underground Storage Tanks:              32 certifications

Wastewater Operator:                      162 certifications

 

EMERGENCY CLEAN-UP EXPENSES

There were 16 emergency expenditures since the last report.

ADMINISTRATIVE ORDERS APPROVED

Thirty five (35) Administrative Orders and three (3) Amended Agreed Orders were issued by the Executive Director and approved by the Commission since the last report.

OTHER BUSINESS – None

 The next Commission meeting will be held on June 22, 2017, at 9 a.m.

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Mississippi Environmental Quality Permit Board Summary of Meeting Held April 11, 2017

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The Mississippi Environmental Quality Permit Board (“Board”) convened its regular monthly meeting at 9:00 a.m. on April 11, 2017, at the offices of the Mississippi Department of Environmental Quality, in Jackson.  Mr. Mike Bograd, RPG, chaired the meeting.

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

Following a prepared agenda, items considered were as follows:

OFFICE OF POLLUTION CONTROL 

 The Staff recommended and Board approved issuance of Air Construction Permit (1280-00058) and Modification to Air Prevention of Significant Deterioration (PSD) Permit for Chevron Products Company, Pascagoula Refinery in Jackson County.

OFFICE OF GEOLOGY

In accordance with MDEQ staff recommendations, the Board approved the following surface mining bond releases:

Surface Mining Bond Releases:

 

Permittee County Permit Staff Recommendation
Memphis Stone & Gravel Company Panola P01-041 Final 30%
Century Construction and Realty, Inc. Lee P10-039TA Initial 80%
King Equipment & Dozer Service, Inc. Jasper P08-006 Final 20%
Rea’s Country Lane Construction, Inc. Chickasaw P06-013 Final 20%
Rea’s Country Lane Construction, Inc. Holmes P11-009 Initial 10%
Oddee Smith Construction, Inc. Lincoln P01-022 Final 90%
BASF Corporation Monroe P78-007 Final 48%
BASF Corporation Monroe P86-015 Initial 90%

 Surface Mining Application:

 The Board approved Birdsong Construction Company, Inc.’s Surface Mining Application with Storm Water Application for the addition of 48.75 acres to an existing permit for a 32.5 acre surface mine in Madison County, Permit No. P14-018A.  Per regulations, Notices were sent to landowners, and MDEQ received several letters of opposition.  Two visitors spoke on behalf of the landowners in opposition citing silting; road problems; traffic and safety issues; quality of life; dust and noise among other issues.  A representative of the Applicant appeared and disputed the claims of the opposition. Staff addressed questions and issues of the opposition, and then stated that the Application is complete, has met all requirements, and the Applicant is in compliance.  Based on this, MDEQ Staff recommended issuance of the Permit.

OTHER BUSINESS

Mr. Roy Furrh, MDEQ Legal Counsel reminded the Board that the deadline to file their 2016 Statement of Economic Interest is approaching.

The next Permit Board meeting will be held on May 9, 2017, at 9 a.m.

 

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Contradictory Federal Court Opinions LGBT Rights in the Workplace Sets Stage for Landmark Supreme Court Showdown

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Two federal court opinions, issued less than 10 days apart, have set the stage for a potential landmark showdown at our nation’s highest court.  The issue revolves around the proper interpretation of the term “sex” contained in Title VII of the Civil Rights Act of 1964—an interpretation that will greatly impact workplace discrimination rights and requirements for years to come.

On March 27, 2017, a three-judge panel of the U.S. Second Circuit Court of Appeals decided the case of Christiansen v. Omnicom Group, Inc.  In its decision, the 2nd Circuit revived a homosexual employee’s employment discrimination claims by ruling that the employee possessed viable Title VII claims based on the theory of “sex stereotyping.”  However, in its ruling, the 2nd Circuit also expressly stated that Title VII’s definition of “sex” did not cover a person’s sexual orientation.  This decision tracked historical rulings of other U.S. courts, in holding that the term “sex” within Title VII refers only to a person’s gender—meaning that discrimination had to be premised on whether a worker is male or female.

Nine days later, on April 4, 2017, the U.S. Seventh Circuit Court of Appeals became the first federal appellate court to buck this trend and rule that Title VII does extend workplace protections on the basis of their sexual orientation.  In deciding the case of Hively v. Ivy Tech, the 7th Circuit opted to expand the definition of “sex” under Title VII to include an individual’s “sexual orientation.”  With its 8-3 decision, the 7th Circuit effectively presents two avenues of recovery for individuals asserting claims on the basis of their sexual orientation.

For years, LGBT employees could only advance claims of workplace discrimination under a theory of “sex stereotyping” discrimination—that is, discrimination based on an employee’s failure to conform to an employer’s perceived gender roles.  In July 2015, the U.S. Equal Employment Opportunity Commission (EEOC) issued its first administrative ruling declaring that Title VII’s use of the word “sex” meant both gender and sexual orientation.  However, until now, no federal court had adopted or mirrored the EEOC’s guidance.

Now things are set to get interesting. The contradictory rulings will most likely be condensed and presented before the U.S. Supreme Court. This would be a landmark ruling for employees, LGBT advocates, and employers.  All of this brings further attention to the remaining uncertainty surrounding the 8-justice status of the Supreme Court, the on-going political fight over filling the late Justice Scalia’s seat, and the impending Democratic filibuster over President Donald Trump’s nominee, Neil Gorsuch.  Even if Gorsuch were confirmed, it remains to be seen how he would rule on this issue.

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