Brunini Law

Mississippi Environmental Quality Permit Board Summary of Meeting Held February 9, 2016

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Environmental Practice Group of the Brunini Law Firm publishes a summary of the proceedings of each monthly meeting of the Mississippi Environmental Quality Permit Board and of the Mississippi Commission on Environmental Quality. We strive to provide, in a succinct newsletter format, the key points addressed in each meeting that will be of interest to the regulated community in Mississippi.

If you have any questions concerning the content of a newsletter it 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.

Meeting Summary

The Mississippi Department of Environmental Quality Permit Board (Board) convened its regular monthly meeting at 9:00 a.m. on February 9, 2016 at the offices of the Mississippi Department of Environmental Quality in Jackson.  Mr. David H. Snodgrass, RPG chaired the meeting.  The Board approved minutes from the January regular meeting along with non-controversial actions/certifications by the staff since the January meeting.

Following a prepared agenda, items considered were as follows:

OFFICE OF GEOLOGY

In accordance with MDEQ staff recommendations, the Board approved the following surface mining bond releases and permit to transfer.

Surface Mining Bond Releases:

Permittee County Permit Staff Recommendation
Burns Dirt Construction, Inc. Oktibbeha P13-010 Final 50% release
Hammett Gravel Company, Inc. Holmes P97-027 Final 20% release
Hammett Gravel Company, Inc. Holmes P98-004 Final 20% release

Surface Mining Permit to Transfer:

Permittee County Permit Staff Recommendation
Riverwind Construction, Inc., requests that P08-036 be transferred to Sikes Equipment Company, LLC Rankin P08-036 Approval of transfer

OFFICE OF POLLUTION CONTROL

Liza Ouzts, MDEQ Senior Attorney, informed the Board that the Findings of Fact and Conclusions of Law have been completed subsequent to the evidentiary hearing that was held in September 2015 regarding the NPDES permit issued to the West Rankin Utility Authority (MS0061743).  Following the hearing, the Board affirmed the issuance of the NPDES permit.  Copies of the Findings of Fact and Conclusions of Law were submitted to West Rankin Utility Authority and the City of Jackson.  Both parties made comments regarding elements of the hearing that were absent from the Findings of Fact and Conclusions of Law.  Consequently, MDEQ staff developed a redline version that incorporated the requested elements.

Pursuant to the MDEQ staff recommendation, the Board voted to accept the redline version of the Findings of Fact and Conclusions of Law.

OTHER BUSINESS

Mr. Roy Furrh, MDEQ General Council, reminded Board members to submit their statements of interest.

The next Permit Board meeting will be held on March 8, 2016 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.

Related Attorneys

Five Things I Learned as a Community Banker

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In my last blog post, which I am ashamed to say was all the way back in May of last year, I concluded by noting that, between 2010 and 2014, a bank’s ability to control costs appeared to be more closely correlated to its earnings performance than its ability to grow interest income. I also stated that my next article would examine whether or not that correlation should hold in a rising interest rate environment. However, since it appears that interest rates will never again rise meaningfully (notwithstanding the Federal Reserve’s feeble attempt to start the process last month, one they may very well need to reverse soon the way 2016 is starting out), I decided to scrap that whole series altogether. Instead, I decided to start the new year with a different idea that will highlight five important ideas or facts about different subjects that I feel are important to community bankers (or maybe just important to me, who knows).

First of all, I must admit that I stole this idea from the Wall Street Journal who, from time to time, runs articles on “Five Things” ranging from interesting notes on that most revered pursuit of intellectual superiority known as the presidential race to reasons why J.J. Abrams had to kill off Han Solo (a development that I am still quite upset about). Luckily, my legal help is cheap, so if the Journal has a problem with me using their format, maybe it will all work out OK.

For my first article in the series, I plan to focus on five things I learned as a community banker that are still useful to me today. As a matter of fact, since they are so countercultural for many in my current profession of law, they may benefit me more now than they did when I was banking. Follow along and see how many of these traits community banking has conditioned into your character as well.

1. Always Call People Back As Soon As Possible

I know this one sounds simple, but you would be shocked to know (or maybe you wouldn’t) how many attorneys act like their voicemail doesn’t exist. Trying to get them to return a message is like trying to get your ten year old to give you change back after a trip to the concession stand; it just doesn’t happen. I’m not sure if they are scared of their phone, or if they are actually that busy, but either way, it is enough to drive you mad. Not that it is excusable, but I can somewhat see why they now refuse to return my calls since I am not their client but instead an attorney that is often representing an opposing viewpoint (even so, the undue delay does nothing but hinder their client’s interest). However, I am sad to say that I had the same experience when I was a community banker AND A CLIENT. Either most clients are much more patient than me, or those attorneys are so good it doesn’t matter. Regardless, community banking taught me that you must always return your phone calls. Not only does it prevent the bank down the street from fielding a subsequent call from that same person, but common sense tells you that it benefits you and your community reputation in the long run to respect the time and effort people put into trying to contact you. Since common sense is often in short supply in the legal world, maybe that is why bankers are just better at this.

2. No Job is Below Your Pay Grade

I must admit, one community banker comes to my mind as the embodiment of this lesson, and it is my father. Since I was a kid, I have watched him pick up paper in the parking lot of the bank while carrying the title of Chairman of the Board and Chief Executive Officer, a practice that he also exhibited several times while me, as his employee, failed to notice and walked right by the tootsie roll wrapper that he bent down to pick up. In the world of legal runners and billable hours, this just doesn’t happen unless it can be done for $235 per hour and itemized on some poor soul’s bill. However, I learned from my father that doing the small jobs that need to be done doesn’t just make you look more down to earth; it also places the needs of your organization above those of your own in order to make sure that it accomplishes its utmost potential. After all, as the organization rises, so do the prospects and aspirations of its members. Unless the organization prospers, though, the realized potential of the members making up that organization is limited by the weight of that underperforming organization. There are too many small jobs for the runners and administrative staff to do alone; some of them require non-billable hours now for a more profitable practice later.

3. Sometimes You Have to Wear More than One (Or Twenty) Hats

Don’t get me wrong, attorneys are great multi-taskers and are forced every day to juggle more than one file at a time. However, for some time now the phenomenon of professional specialization has taken a foothold within many law firms so that most attorneys limit themselves to one or two practice areas and rarely venture across the borders of those specialties for fear of having to touch base with their professional liability carrier. Community bankers, though, have never had that luxury. As a matter of fact, as regulation increases and the pool of qualified talent decreases, the thought of specialization is nothing more than a pipe dream for all community bankers, or at least those that want to survive the current super-competitive environment to fight another day. Truth be known, technology and competition is quickly changing the legal profession as well, and an obstinate adherence to strict specialization may not be possible for most attorneys much longer, either. Luckily, I had six years of community banking that taught me to wear more than just one hat.

4. People Don’t Really Care What You Know Until They Know You Care

It scares me sometimes to think about how many people I work with every day (both within my law firm and within other firms whose attorneys I work with on different issues) that have more impressive IQs and resumes than I do. As a profession that peddles knowledge, attorneys often place the highest premiums on intellectual talents while discounting bedside manner. However, while I was a community banker that tried to convince my attorneys that I just didn’t need that twenty-page memo regardless of how well it was researched, I realized that clients really can’t trust your knowledge until they can trust that you will use it in their best interest. The duty of loyalty to a client doesn’t just mean you put their needs above those of a third party; it also means that you must put their needs above those of your own, no matter how much you need billable hours or words of affirmation extolling your vast legal research skills. Unless your knowledge benefits your client, it is better to just keep it to yourself, especially when your hourly rate contains three digits.

5. Never Tell A Customer “That’s Not My Job”

While I was at the bank, there was a sweet old lady that would call me at least once a month to help her balance her check book. At first, this aggravated me. After all, my ego told me that I have a CPA and a law degree; surely such a menial task can be performed more efficiently by a customer service representative, or possibly even a teller. However, I later noticed that there were other customers that would walk into my dad’s office asking the same thing, and he never hesitated to help them out. I’m not talking about customers who were going to bring the bank a two million dollar loan from time to time. No, I’m talking about the 85 year old man that was trying to make sure his social security check would stretch until the end of the month. Eventually, it dawned on me that God gives us a calling for reasons other than to generate income in the most efficient manner; he also places us within a profession to help make the world a better place. Those who realize this don’t just earn a living, they also live out a calling that makes their work more rewarding. At the same time, that two million dollar loan customer is watching more often than not and takes notice of their character. Such character demands loyalty, and loyalty is always good for business.

So, there’s my list of the five most valuable things I learned as a community banker. I know for sure that it is not comprehensive, and there very well may be other more important lessons you have learned that I failed to mention. If so, please e-mail them to me at twalker@brunini.com. I would love to learn from your experiences as well.

* This Newsletter is a publication of the Commercial 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.

Related Attorneys

Mississippi Environmental Quality Permit Board Summary of Meeting Held January 12, 2016

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Environmental Practice Group of the Brunini Law Firm publishes a summary of the proceedings of each monthly meeting of the Mississippi Environmental Quality Permit Board and of the Mississippi Commission on Environmental Quality. We strive to provide, in a succinct newsletter format, the key points addressed in each meeting that will be of interest to the regulated community in Mississippi.

If you have any questions concerning the content of a newsletter it 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.

Meeting Summary

The Mississippi Department of Environmental Quality Permit Board (Board) convened its regular monthly meeting at 9:00 a.m. on January 12, 2016 at the offices of the Mississippi Department of Environmental Quality in Jackson.  Mr. David H. Snodgrass, RPG chaired the meeting.  The Board approved minutes from the December Regular meeting along with non-controversial actions/certifications by the staff since the December meeting.

Following a prepared agenda, items considered were as follows:

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
Eutaw Construction Company, Inc. Monroe P96-002T Final 10% release
Eutaw Construction Company, Inc. Monroe P97-018T Final 10% release
King Equipment & Dozer Services, LLC Jasper P08-006 Additional 20% release
S&B Industrial Minerals North America Monroe P00-041T Final 10% release
Valley Gravel Company Lowndes P97-039 Initial 10% release

OFFICE OF POLLUTION CONTROL

Construction and Building Materials Branch

The Board approved coverage for OFP Match Worx Shooting Facility in Leake County under the Construction Stormwater General Permit (MSR107027).  MDEQ staff stated that this facility was cited in October 2015 for conducting land-disturbing activities on a site larger than 5 acres without a permit.  Since this time, the facility developed a SWPPP and submitted a Notice of Intent (NOI) to MDEQ.  Staff have reviewed the facility’s SWPPP and NOI and stated that it is complete.  Further, the facility has appropriate plans for safety and hours of operation.

Several visitors attended the meeting and stated their concerns regarding the proposed shooting range.  These included water contamination, air pollution, and safety and noise disturbances.  Visitors also asked that MDEQ hold a public hearing before issuing coverage. Mr. Snodgrass of the Board noted that this facility was requesting a general permit—which has no public hearing requirement.  Further, Mr. Snodgrass clarified that the Board was not responsible for local landuse and zoning decisions.  The Board approved the coverage based on MDEQ staff recommendation that all environmental requirements are now satisfied.

Solid Waste and Mining Branch

The Board approved a reissuance of the Solid Waste Permit for Unified Waste Systems, L.L.C., Starling Rubbish Disposal Facility (SW0170020518).  This as a 55-acre Class I rubbish disposal site located in DeSoto County.  Standard permits for Class I facilities allow operation for a 10-year period.  MDEQ staff stated that this permit contains language allowing the facility to operate for 5 years (until July 7, 2019).  After this time, the facility must obtain a conditional use approval from the DeSoto County Board of Supervisors and submit such approval to MDEQ to continue operation.

A resident of DeSoto County addressed the Board, requested an additional public meeting and time for review of the permit, and voiced concerns about the current operation of the site.  Concerns included a report of unauthorized waste being accepted at the site and an alleged fire within the landfill.  The resident is also concerned the facility would endanger nearby schools and negatively impact future development.  The Board clarified that it is not in charge of local zoning, but rather ensures compliance with state and federal environmental regulations.  Further, the permit contains special language that requires the facility to provide documentation of the local Board of Supervisor’s continuing approval of the site.

MDEQ staff inspected the facility on January 6, 2016 and found no compliance issues and no physical evidence of a fire in the landfill.  The Board approved the permit based on the MDEQ Staff’s recommendation that all environmental requirements are satisfied.

Joint Matter of the Office of Geology and the Office of Pollution Control

The Board approved the Surface Mine application (A1927) and modification of the Mining Stormwater Coverage (MSR322500) for Pierce Construction and Contract Hauling, Inc., Tucker Mine in Monroe County.  MDEQ staff stated that the modification would allow a 23-acre mine for borrow material.  A public hearing was held in Monroe County in December 2015.  At the hearing, attendees expressed concerns regarding traffic near the facility and the number of permitted mine sites near Hamilton, MS.  However, MDEQ Staff explained that there are only 1 permitted surface mine and 3 “exempt” sites (less than 4 acres) located near Hamilton.

MDEQ staff stated that the facility has met all requirements for modification of the facility and recommended the Board’s approval.  The Board separately approved the facility’s Surface Mining Permit and modified the Mining Stormwater Coverage.

OTHER BUSINESS

Mr. Roy Furrh, MDEQ Legal Counsel reminded the Permit Board members that they need to file their annual ethics statement.

The next Permit Board meeting will be held on February 9, 2016 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.

Related Attorneys

U.S. Department of Labor’s Final Overtime Rule Not Expected in 2nd Half of 2016

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Earlier this year, the U.S. Department of Labor (DOL) announced a series of proposed changes to its federal regulations regarding worker classification.  If implemented, the highly controversial rule would require U.S. employers to potentially re-classify over 5 million workers as “non-exempt”—greatly expanding the number of U.S. employees eligible for overtime compensation.  The DOL received over 250,000 public comments on the proposed changes throughout its open comment period, which ended on September 4, 2015.

Since that time, employers have had three common questions: (1) when would the DOL release its final decision on the proposed changes; (2) what will the final changes (if any) entail; and (3) when will employers have to comply with any final changes.  Recent (yet conflicting) guidance from President Obama’s Administration indicates that the final ruling will not be issued before July 2016, and likely later into the year.

On November 20, 2015, the U.S. Office of Management and Budget (OMB) published its Fall 2015 Unified Agenda and Regulatory Plan

The important thing to know about these dates [in the Unified Agenda] is that they are estimates and rarely accurate.  The agency has no legal obligation to meet that published deadline.  Some rules have been on the regulatory agenda for years and they just change the date with the new agenda comes out.”

Prior to the publication of the Fall Unified Agenda, officials with the DOL, including Solicitor of Labor Patricia Smith, indicated that the final rule would likely be issued sometime in “late 2016.”  DOL officials also stated that any changes would be issued early enough to for the changes to take effect before the President Obama leaves office.

Under either scenario, employers should not have to comply with any of the proposed changes to the FLSA’s overtime exemptions during the 1st half of 2016.  However, the “late 2016” predictions are important for employers if true, as it suggests that the time between publication of the final rule and its effective date will be short, because the later the final rule is published, the smaller the window of time the department can allow employers to review and adapt before the new regulations become effective.  In fact, it is very likely that employers may only have 30 to 60 days after the final changes are published before they become legally effective.

Related Attorneys

Mississippi Environmental Quality Permit Board Summary of Meeting Held December 8, 2015

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Environmental Practice Group of the Brunini Law Firm publishes a summary of the proceedings of each monthly meeting of the Mississippi Environmental Quality Permit Board and of the Mississippi Commission on Environmental Quality. We strive to provide, in a succinct newsletter format, the key points addressed in each meeting that will be of interest to the regulated community in Mississippi.

If you have any questions concerning the content of a newsletter it 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.

Meeting Summary

The Mississippi Department of Environmental Quality Permit Board (Board) convened its regular monthly meeting at 9:00 a.m. on December 8, 2015 at the offices of the Mississippi Department of Environmental Quality in Jackson.  Mr. David H. Snodgrass, RPG chaired the meeting.  The Board approved minutes from the November Regular meeting along with non-controversial actions/certifications by the staff since the November meeting.

Following a prepared agenda, items considered were as follows:

OFFICE OF GEOLOGY

In accordance with MDEQ staff recommendations, the Board approved the following surface mining bond releases, bond application, and permits to rescind.

Surface Mining Bond Releases:

Permittee County Permit Staff Recommendation
Eutaw Construction Company Clay P13-002 Initial 50% release
South Byram Properties, Inc. Hinds P06-009 Initial 20% release
Eutaw Construction Company Lee P01-008 No additional release

Surface Mining Bond Application:

Permittee County Permit Staff Recommendation
APAC-Mississippi, Inc. Yazoo A1928 Approved

Surface Mining Permit to Rescind:

Permittee County Permit Staff Recommendation
RaCon, Inc. Lowndes P10-007 Rescind
RaCon, Inc. Lowndes P10-015 Rescind
RaCon, Inc. Lowndes P10-016 Rescind
RaCon, Inc. Lowndes P10-025 Rescind

MDEQ Staff recommended that Fuller Pit, LLC in Tishomingo County, No. P94-068T1 combine Permit Nos. P94-068T1 and P94-065T1, rescind P94-065T1, and retain P94-068T1 as the final Permit Number.

OFFICE OF POLLUTION CONTROL

No items on the agenda

OTHER BUSINESS

MDEQ reported that a draft version of the Findings of Facts from the Evidentiary Hearing regarding the Board’s issuance of the NPDES Permit MS0061743 to the West Rankin Utility Authority (“WRUA”) is not complete at this time.  They anticipate bringing this matter back before the Board at either the January or February 2016 meeting.

The next Permit Board meeting will be held on January 12, 2016 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.

Related Attorneys

Mississippi Environmental Quality Permit Board Summary of Meeting Held November 10, 2015

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Environmental Practice Group of the Brunini Law Firm publishes a summary of the proceedings of each monthly meeting of the Mississippi Environmental Quality Permit Board and of the Mississippi Commission on Environmental Quality. We strive to provide, in a succinct newsletter format, the key points addressed in each meeting that will be of interest to the regulated community in Mississippi.

If you have any questions concerning the content of a newsletter it 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.

Meeting Summary

The Mississippi Department of Environmental Quality Permit Board (Board) convened its regular monthly meeting at 9:00 a.m. on November 10, 2015 at the offices of the Mississippi Department of Environmental Quality in Jackson.  Mr. David H. Snodgrass, RPG chaired the meeting.  The Board approved minutes from the September Special and Regular meetings along with non-controversial actions and certifications by the staff since the September meeting.

Following a prepared agenda, items considered were as follows:

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
TCB Construction Company

Harrison

P03-046

Initial 80% Release
Hammett Gravel Company, Inc.

Holmes

P-98-023

Final 30% Release
Hammett Gravel Company, Inc.

Holmes

P-02-039

Final 30% Release
Hammett Gravel Company, Inc.

Holmes

P-03-006A

Final 30% Release

OFFICE OF POLLUTION CONTROL

No items on the agenda

OTHER BUSINESS

MDEQ staff reported that during their meeting of October 22, 2015 the Mississippi Commission on Environmental Quality was notified of the new public records regulations ensuring fees remain consistent with those of other state agencies.  These new regulations are to be effective November 23, 2015.

MDEQ staff also reported that a draft version of the Findings of Facts from the Evidentiary Hearing regarding the Board’s issuance of the NPDES Permit MS0061743 to the West Rankin Utility Authority (“WRUA”) should be completed by the end of this week and sent to WRUA and the City of Jackson for their review and comment.  They anticipate bringing this matter back before the Board for the meeting of December 8, 2015.

The next Permit Board meeting will be held on December 8, 2015 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.

Related Attorneys

Mississippi Commission on Environmental Quality Summary of Meeting Held October 22, 2015

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Environmental Practice Group of the Brunini Law Firm publishes a summary of the proceedings of each monthly meeting of the Mississippi Environmental Quality Permit Board and of the Mississippi Commission on Environmental Quality. We strive to provide, in a succinct newsletter format, the key points addressed in each meeting that will be of interest to the regulated community in Mississippi.

If you have any questions concerning the content of a newsletter it 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.

Meeting Summary

The Mississippi Commission on Environmental Quality convened at 9:00 a.m. on October 22, 2015, at the offices of the Mississippi Department of Environmental Quality in Jackson.  Mr. Van Devender, Chair, called the meeting to order.  The Commission approved minutes from the previous meeting held on August 27, 2015.  Following a prepared agenda, items considered were as follows:

Commission Approval of Brownfield Consulting Firms

The Commission approved applications for the following two firms requesting to be listed as Brownfield Consulting Firms based on staff recommendation.

FC&E Engineering, LLC

PO Box 1774

Brandon, MS 39043

Waggoner Engineering, Inc.

103-A Lefleurs Square

Jackson, MS 39211

Commission Approval of Environmental Covenant

The Commission approved the Environmental Covenant for the Davis Timber Company Superfund Site in Lamar County, MS based on staff recommendation.  The Covenant is between the Commission, Gayle and Tommy M. Davis and the United States Environmental Protection Agency regarding the remediation of property located on Jackson Road in Hattiesburg.

The restrictions in the proposed Environmental Covenant will allow the site to be used as a community-based animal shelter. MCEQ staff believes that with the conditions and restrictions contained in the Covenant, the site will be in compliance with Federal and State laws and standards and will be protective of public health and the environment.  Further, MCEQ staff noted that this project has been recognized for excellence in supporting resource reuse.

2015 Triennial Review:  Proposed Amendments to Mississippi’s Water Quality Standards

Mike Freiman, P.E. of MDEQ staff described the modifications that are anticipated in the 2015 triennial review.  MDEQ is required to update the state’s water quality standards document every three years.  The anticipated changes are (1) an update of the bacterial indicator for freshwaters from fecal coliform to e.coli, and (2) minor revisions to the language regarding pH criteria.  The public comment period for the proposed revisions in currently underway and a public hearing is scheduled for November 5, 2015.

Mississippi’s Priority Framework for Listing Priority Watersheds

MDEQ staff presented an update to the Commission on MDEQ’s efforts to prioritize watersheds in response to an EPA initiative.  In response, MDEQ has developed a multi-program approach to set planning priorities for watershed protection and restoration.

Commission Approval of Hazardous Waste Management Regulation Amendments

The Commission approved the adoption of amendments to Mississippi’s hazardous waste regulations presented by MDEQ staff.  The amendments included the following:  (1) management criteria for cathode ray tubes, (2) criteria regarding carbon dioxide streams when used for carbon sequestration, and (3) implementation of electronic manifest systems.  A public hearing on the amendments was held on September 15, 2015 and no comments were received.

Adoption of Amendments to “Regulations Regarding the Delegation of Authority from the Mississippi Commission on Environmental Quality to the Executive Director of the Mississippi Department of Environmental Quality.”  11 Miss. Admin. Code Ch. 1, Pt. 1.

The Commission approved proposed amendments to Mississippi Regulations Regarding the Delegation of Authority from the Mississippi Commission on Environmental Quality to the Executive Director of the Mississippi Department of Environmental Quality.  The amendments allow the following changes:  (1) clarification of the Executive Director’s authority to issue orders pursuant to the Mississippi Surface Coal Mining and Reclamation Law; (2) authority to enter into reciprocity agreements with other states related to certifications; (3) authority to issue administrative orders to require compliance of water well drillers operating in violation of Mississippi law, regulations or other Orders; (4) authority to execute, approve and amend environmental covenants (5) authority to delegate the authority to sign Commission Orders to the Chief of Staff; (6) authority to re-issue, deny or revoke Asbestos Certifications and approve Asbestos Abatement Training Programs; (7) authority to re-issue, deny or revoke Underground Storage Tank (“UST”) Certifications to individuals authorized to install, alter and/or close USTs; (8) authority to re-issue, deny, or revoke Landfill Operator and Class I Rubbish Site Operator Certifications, Wastewater Operator Certifications, Wastewater Training Programs, Water Well Driller Licenses, Lead Certifications, and Lead-Based Paint Activities Training Programs; (9) authority to requisition and use funds in the Nonhazardous Solid Waste Corrective Action Trust Fund and Waste Tire Abatement Funds; (10) authority to discharge or exercise any power or duty granted to the Commission by the provisions of the Surface Coal Mining and Reclamation Law; and (11) authority to approve and award Regional Recycling Cooperative Grants and Nonhazardous Solid Waste Corrective Action Fund Cooperative Agreements.

A public hearing on the proposed amendments was held on October 14, 2015 and no comments were received.

Adoption of Amendments to “Regulations Regarding the Review and Reproduction of Public Records.” 11 Miss. Admin. Code Ch. 1, Pt. 2.

The Commission approved proposed amendments to Regulations Regarding the Review and Reproduction of Public Records.  The amendments provide clarity and further detail about how public records requests can be made and how MDEQ processes such requests.

CERTIFICATIONS APPROVED

Asbestos:                     188 certifications

Lead Paint:                  119 certifications

Underground Storage Tanks:            18 certifications

EMERGENCY CLEAN-UP EXPENSES APPROVED

Nine (9) emergency clean-up expenditures occurred since the last report.

ADMINISTRATIVE ORDERS APPROVED

There have been the (10) administrative orders were issued by the Executive Director and approved by the Commission since the last report.  These include the following matters:

Program Area Number of Orders Penalty Range
NPDES 1 $2,500
Large Construction Stormwater 2 $4,000 – $5,000
Solid Waste 2 $0 – $4,000
Ready Mix Concrete 1 $8,800

Reneptco II, LLC of Bay Springs, MS was assessed a civil penalty of $87,500 for polluting state waters due to a well control event that released crude oil into waters of the State.

An order confirmed the Commission’s adoption of the amendments to “Regulations for Ambient Air Quality Nonattainment Areas” and the associated Revision to the MS State Implementation Plan (SIP Revision).

An order confirmed the approval of the comprehensive update of the Jefferson County Solid Waste Management Plan.

An order adopted the Water Pollution Control Revolving Loan Fund Program’s Final Intended Use Plan (IUP) for fiscal year 2015.

The Commission entered into an executive session to discuss pending litigation.

The next Commission meeting is scheduled for December 2, 2015.

This Newsletter is a publication of the Environmental Department of the law firm of Brunini, Grantham, Grower & Hewes, PLLC, 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 Summary of Meeting Held September 8, 2015

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Environmental Practice Group of the Brunini Law Firm publishes a summary of the proceedings of each monthly meeting of the Mississippi Environmental Quality Permit Board and of the Mississippi Commission on Environmental Quality. We strive to provide, in a succinct newsletter format, the key points addressed in each meeting that will be of interest to the regulated community in Mississippi.

If you have any questions concerning the content of a newsletter it 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.

Meeting Summary

The Mississippi Department of Environmental Quality Permit Board (Board) convened its regular monthly meeting at 9:00 a.m. on September 8, 2015 at the offices of the Mississippi Department of Environmental Quality in Jackson.  Mr. David H. Snodgrass, RPG chaired the meeting.

The Board approved minutes from the August meeting. Also the Board approved non-controversial actions/certifications by the staff since the August meeting.

Following a prepared agenda, items considered were as follows:

OFFICE OF GEOLOGY

In accordance with MDEQ staff recommendations, the Board approved the following surface mining bond releases and permits to transfer.

Surface Mining Bond Release:

Permittee

County

Permit

Staff Recommendation
Eutaw Construction Company

Monroe

P98-025

Initial 80% Release
Hammett Gravel Company

Holmes

P00-019

Final 30% Release
Hammett Gravel Company

Holmes

P00-059

Final 40% Release
Lloyd G. Spivey, Jr.

Madison

P02-014

Final 10% Release
Dubois Dozer & Dirt, Inc.

Rankin

P06-015

Additional 30% Release
Dubois Dozer & Dirt, Inc.

Rankin

P06-031

Final 50% Release
Dubois Dozer & Dirt, Inc.

Rankin

P08-012A

Initial 60% Release

Surface Mining Permit to Rescind:

Permittee

County

Permit
Standard Gravel Company, Inc.

Forrest

P08-002
Edgin Construction, Inc.

Adams

P07-008

OFFICE OF POLLUTION CONTROL

Construction Branch:

The Board approved issuance of the Modification of Asphalt General Permit Coverage (MSR700098) for Huey P. Stockstill, LLC, Picayune Ready Mix and Asphalt Plant.  Upon notification by the Applicant, a neighboring property owner submitted a letter of concern requesting that the Applicant locate the facility a less-populated area. The letter did not express any environmental concerns.  Because facility’s application is complete and the facility is currently in compliance, MDEQ recommended issuance of the Modification.

Solid Waste Management and Mining Branch:

The Board approved Reissuance of Solid Waste Permit (SW009010B0302) for Waste Management of Mississippi, Inc., Prairie Bluff Sanitary Landfill and Recycling Center in Chickasaw County. A public hearing on the permit was held, and there was no opposition at the hearing.   Because the facility’s application is complete and the facility is currently in compliance, MDEQ staff recommended reissuance of the Permit.

Agricultural Branch:

The Board approved modification of coverage under the AFO General Permit (MSG201834) and Storm Water Coverage (MSR106963) for GottaGo Poultry in Copiah County.  The modification will include eight poultry houses and construction activity on twelve acres of land.  Staff stated that upon notification by the Applicant, a neighboring property owner submitted a letter of concern regarding health risks.  Because the facility’s application is complete and the facility is currently in compliance, MDEQ staff recommended issuance of the modification.

Solid Waste Policy, Planning, and Grants Branch:

The Board approved the proposed Statewide General Permit for Biosolids Land Application (SWGP-BLA).  Sites approved under this permit must meet the siting and operational standards established by the Mississippi Nonhazardous Solid Waste Management Regulations as well as Federal Standards for the Use and Disposal of Sewage Sludge.  Facilities approved under the General Permit will be required to prevent run-off and limit public access and livestock grazing.

MDEQ received three comments at public hearing on the draft General Permit held on August 4, 2015. In addition, two letters of concern were submitted to the agency.  The stated concerns included sludge application methods, the possibility of runoff from application sites, and the advantage of a general permit compared to an individual permit.

In response to questions from the Board, MDEQ Staff stated that the General Permit will require application methods that are similar to the individual permits already in place:  biosolids will be tested prior to application, buffers between adjacent land will be required, and access to application sites will be limited.  Further, the General Permit will allow MDEQ to require monitoring of nearby streams and groundwater when site-specific conditions warrant such monitoring.  Consistent with the current process for individual biosolids application permits, issuance of coverage under the General Permit will not require notification of contingent landowners.  Finally, MDEQ Staff stated that they will require individual permits for biosolids application on sensitive areas or areas subject to significant public interest.

Following discussion, the Board approved the proposed General Permit with Mr. Dennis Reike voting in opposition.  Mr. Reike stated he opposed the permit because it does not require groundwater and surface water monitoring and notification of contingent landowners at all permitted sites.

OTHER BUSINESS

MDEQ stated that the agency is reviewing records requests and may make changes if needed to ensure that fees remain consistent with those of other state agencies.

Minutes from the West Rankin Utility Authority Evidentiary Hearing will likely be available at the October 2015 Permit Board meeting.  In addition, a draft version of the Findings of Facts will likely be available in November 2015.

The next Permit Board meeting will be held on October 13, 2015 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.

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New NLRB Ruling Expands “Joint Employer” Standard

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With a recent decision, the National Labor Relations Board (NLRB) announced broad changes to its “joint employer” standard by creating a new test that is virtually guaranteed to result in more findings of a “joint employer” relationship under the National Labor Relations Act (the Act).  Under this new test, the NLRB considers a company to be a “joint-employer” if it (1) exercises “indirect control” over working conditions, or (2) if it has “reserved authority” to do so. This marks a significant departure from the NLRB’s decades-old “joint-employer” standard that required the actual exercise of control—not just the ability to do so.   Affecting both unionized and non-union companies (and even entities that have no employees of their own) alike, the NLRB’s decision also has the potential for broad implications for other employment laws and government agencies such as the Department of Labor, EEOC and OFCCP.

On August 27, 2015, the NLRB issued a 3-2 ruling, involving Browning-Ferris Industries of California, Inc. (BFI), an owner/operator of a California-based recycling facility.  In its decision, the NLRB ruled that BFI should be considered a “joint employer” with a Leadpoint Business Services, a temporary staffing company that provided short-term labor to BFI’s recycling facility.  At the time, BFI employed approximately 60 employees—most of whom worked outside the recycling facility, moving and preparing materials to be sorted inside the facility.  BFI contracted with Leadpoint to provide over 200+ in-facility workers under a temporary labor services agreement.  In June 2013, the Teamsters Local 350 (the Union) filed a claim with the NLRB on behalf these in-facility employees, claiming that BFI and Leadpoint were actually their “joint-employers.”

Under the former joint-employer standard (utilized by the NLRB since 1984), the NLRB examined “whether alleged joint employers share the ability to control or co-determine essential terms and conditions of employment.” See TLI, Inc., 271 NLRB 798 (1984); Laerco Transp., 269 NLRB 324 (1984). The NLRB provided specific examples of what it considered to be “essential terms and conditions of employment,” including: hiring, firing, discipline, and supervision.  TLI, Inc., 271 NLRB 798.  In later decisions, NLRB emphasized the type of control exercised by alleged joint employers—requiring that the control be “direct and immediate.” See, e.g., Airborne Freight Co., 338 NLRB 597 (2002).

The NLRB’s Browning-Ferris decision overturns this 30 years of precedent.  Under the new test, the NLRB first asks if there is a common-law employment relationship between the employees and the alleged employer in question.  If this common-law employment relationship exists, the NLRB then asks if the alleged joint employer possesses “sufficient control” over the employees’ “essential terms and conditions of employment.”   Importantly, the NLRB stated that from now on, a company possesses “sufficient control” if it has the ability to exercise control over these terms and conditions of employment.  While the actual exercise of “direct and immediate” control is probative, it is no longer essential.

This decision by the NLRB vastly expands the types and number of entities that can be held responsible for unfair labor practice violations and who may be held to have collective bargaining obligations regarding employees of a totally separate, independent employer.  While the NLRB claims it is clarifying its joint-employer standard, in actuality, the NLRB is completely recasting the “joint employer test.”  In the past, the determination was based on a close analysis of the actual relationships between the alleged joint employers.  Going forward, the NLRB will consider what the relationship between the two entitiesmight be expanded to encompass.  Then, based upon that speculation, the NLRB’s decision shoehorns this “possible relationship” into a concrete joint-employer finding.

The NLRB’s Browning-Ferris decision follows on the heels of the July 2014 decision from the NLRB General Counsel stating that McDonald’s is a “joint-employer” of workers at franchised restaurants, along with the individual franchisees.   The NLRB’s expanded concept of a “joint employer” also parallels recent efforts by the U.S. Department of Labor, the U.S. Equal Employment Opportunity Commission and the Office of Federal Contract Compliance Programs—all seeking to hold large companies responsible for legal compliance as to individuals from whose services they benefit—regardless of whether a direct employment relationship exists.

The NLRB’s new theory of joint employment has the potential to have far-reaching and, if so, likely troubling impacts on employers throughout the United States.  In addition to facing joint liability for labor law violations, entities that are deemed to be joint employers under this new standard may face collective bargaining obligations and find themselves enmeshed in labor disputes between direct employers and labor organizations.  Any companies that utilize contingent workers employed by another entity or staffing company, as well as parties to franchise agreements, should consider reviewing their employment practices, contractual arrangements and course of dealing in light of this significant change in the law.

Unfortunately, there is no single or simple solution to the issue.  A company’s “joint employment” status is a factual inquiry that will vary from employer to employer.  Each relationship will need to be considered in light of (as the NLRB puts it) the “industrial realities” to develop the most effective responses.

This Newsletter is a publication of the Labor and Employment 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.

Related Attorneys

Mississippi Commission on Environmental Quality Summary of Meeting Held August 27, 2015

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Environmental Practice Group of the Brunini Law Firm publishes a summary of the proceedings of each monthly meeting of the Mississippi Environmental Quality Permit Board and of the Mississippi Commission on Environmental Quality. We strive to provide, in a succinct newsletter format, the key points addressed in each meeting that will be of interest to the regulated community in Mississippi.

If you have any questions concerning the content of a newsletter it 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.

Meeting Summary

The Mississippi Commission on Environmental Quality convened at 9:00 a.m. on August 27, 2015, at the offices of the Mississippi Department of Environmental Quality in Jackson.  Chat Philips recognized W. J. Van Devender as the newly elected Commission Chair.  Mr. Van Devender called the meeting to order.  The Commission approved minutes from the previous meeting held on May 28, 2015.

Following a prepared agenda, items considered were as follows:

 Adoption of a Revision to the State Implementation Plan (SIP) and Amendments to 11 Mississippi Administrative Code, Part 2, Chapter 11, “Regulations for Ambient Air Quality Nonattainment Areas”

 The Commission approved the proposed SIP revisions and regulations amendments.  The revisions correct a source applicability error in the regulations and add clarifying language regarding emission controls in nonattainment areas.  MDEQ held a public hearing on July 2, 2015 concerning the proposed revisions and amendment.  No comments were received.

Water Pollution Control Revolving Loan Fund (WPCRLF) Program, Conditional Adoption of FY-2015 Intended Use Plan

The Commission conditionally approved the FY-2015 Intended Use Plan (IUP) subject to completion of the required public notice period and public hearing and provided that any public commends are resolved without significant changes.  The conditional approval stems from MDEQ’s obligation to finalize the FY-2015 IUP prior to September 30, 2015.  Tony Caldwell of MDEQ staff stated that the draft IUP is currently at public notice, and a public hearing is scheduled for September 22, 2015.

The IUP identifies loan funds available to Mississippi communities for constructing wastewater infrastructure along with the loan interest rate, program deadlines, and other information.  The FY-2015 IUP reflects new federal requirements with apply to loans issued in FY-2015 and after.

Commission Approval of Brownfield Obligation Transfer

The Commission approved the transfer of obligations in Brownfield Agreement #5958-11 from the City of Picayune and Stockstill Brothers Investments, LLC to Huey P. Stockstill, LLC.  This agreement governs remediation of the Arizona Chemical Facility in Picayune.  In accordance with Rule 2.1.5.C of Part 3, Chapter 2:  Final Regulations Governing Brownfield Voluntary Cleanup and Redevelopment in Mississippi, the parties have jointly petitioned the Commission that Huey P. Stockstill, LLC has the financial, managerial, and technical resources to complete performance of the Agreement.

MDEQ 2017-2021 Strategic Plan

MDEQ has developed a Strategic Plan for Fiscal Years 2017-2021 as required by the Mississippi Performance Budget and Strategic Planning Act of 1994.  MDEQ’s Strategic Plan includes a “clear and concise blueprint” along with performance measures for how the agency will protect human health and the environment over the next several years.  A copy of the Plan was provided to each Commissioner.

Gary Rikard recognized Mr. Trey Hess as MDEQ’s leader in developing the Plan.  Mr. Rikard requested that each Commissioner take the opportunity to read the Plan before approving it in a later meeting.

Hurricane Katrina Anniversary Presentation to the Commission

Richard Harrell and other MDEQ staff members delivered a presentation to the Commission commemorating the 10-year anniversary of Hurricane Katrina.  At the start of the presentation, Mr. Harrell stated that Katrina caused $125 billion in damages to Mississippi in 2005.  Presenters described MDEQ’s efforts to clean up these damages and assist with meeting basic needs for affected Mississippians while protecting the environment.  Staff recalled efforts to dispose of massive amounts of solid waste, restore drinking water supplies, and restart wastewater treatment facilities in the days following Katrina.  Presenters recognized the valiant efforts of MDEQ staff deployed to coastal counties along with those who remained in Jackson to carry out the core functions of MDEQ.

CERTIFICATIONS APPROVED

Asbestos:                     364 certifications

Lead Paint:                  131 certifications

Underground

Storage Tanks:            34 certifications

EMERGENCY CLEAN-UP EXPENSES APPROVED

Eight (8) emergency clean-up expenditures occurred since the last report.

ADMINISTRATIVE ORDERS APPROVED

There have been fifty (50) administrative orders were issued by the Executive Director and approved by the Commission since the last report.  These include the following matters:

Program Area Number of Orders Penalty Range
NPDES 4 $0 – $45,500
Large Construction Stormwater 2 $5,000 – $10,000
Air 8 $7,500 – $76,110
Solid Waste 1 $3,000
Ready Mix Concrete 1 $5,000
Baseline Stormwater 2 $10,00 – $20,000
UST 4 $500 – $5,000
Water Well Drillers 4 $0 – $2,340

The Commission entered into an executive session to discuss pending litigation.

The next Commission meeting is scheduled for September 24, 2015.

This Newsletter is a publication of the Environmental Department of the law firm of Brunini, Grantham, Grower & Hewes, PLLC, 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.

Related Attorneys