Brunini Law

Mississippi Commission on Environmental Quality Summary of Meeting Held July 23, 2013

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Commission on Environmental Quality convened at 9:00 a.m. on July 25, at the offices of the Mississippi Department of Environmental Quality in Jackson. Chat Phillips chaired the meeting attended by a majority of the members. Minutes from the last meeting held in May 2013 were approved. Following a prepared agenda, items considered were as follows:

ELECTION OF OFFICERS FOR FISCAL YEAR 2014

The Commission voted to elect the following members as officers for FY-2014:

Chairman – Chat Phillips

Vice-Chairman – Charles Dunagin

BROWNFIELD CONSULTING FIRM

The Commission voted to approve the following firm as a Brownfield Consulting Firm:

Professional Service Industries, Inc. (PSI)
724 Central Avenue
Jefferson, Louisiana 39774

WATER POLLUTION CONTROL REVOLVING FUND LOAN PROGRAM

The MDEQ staff recommended the adoption by the Commission of the FY-2013 Intended Use Plan Amendment No. 1. This amendment includes changes to add new projects to the Planning List for possible funding, to incorporate the actual Title VI capitalization grant allotment, to account for the unavailability of the FY-2013 capitalization grant and state match for obligation, due to the lack of adequate state match authorization during the 2013 Regular Legislative Session, and to provide for the obligation of additional repayments (through March 2014) to replace the currently unavailable FY-2013 capitalization grant and state match funds. The Commission voted to approve the adoption of the amendment.

LIGNITE MINING FEES

The MDEQ staff recommended the following Lignite Mining Fees for the 2014 state fiscal year:

Liberty Fuels Company, LLC – $125,000.00 (same as for the state fiscal year 2013)

Mississippi Lignite Mining Company – $125,000.00 (same as for the state fiscal year 2013)

These amounts cover approximately 50% of the anticipated cost 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. The Commission voted to approve the Lignite Mining Fees listed above.

REFORMATTED AND RENUMBERED REGULATIONS

The Commission regulations have been reformatted and renumbered pursuant to the Administrative Procedures Act and as required by the Secretary of State. On June 4, 2013, a public hearing was held related to the reformatted and renumbered regulations. This rulemaking does not change the content of the regulations. The Commission voted to approve and adopt the reformatted and renumbered regulations.

BRIEFING ON DENBURY WELL

The MDEQ Staff provided the Commission with a briefing on an oil spill that occurred at the Denbury Well, located in Yazoo County, on August 9, 2011. Denbury acquired the site in 2005, and the area has been a tremendous resource for the state since 1939. The oil spill occurred while Denbury was doing CO2 enhanced oil recovery. As soon as the oil spill was discovered, Denbury began emergency operations. During the emergency response, some environmental damage occurred and Denbury worked to mitigate these damages. The oil spill occurred over a period of thirty-seven (37) consecutive days. Denbury, cited by MDEQ for violating state laws related to air and water pollution, entered an Agreed Order with MDEQ in a final settlement amount of $662,500.00.

BRIEFING ON PHOENIX AWARD

On May 16, 2013, Mississippi was awarded two (2) Phoenix Awards at the National Brownfields Conference. The awards were in recognition of Mississippi’s excellence in Brownfields development.

CERTIFICATIONS APPROVED

Asbestos:                     306 certifications

Lead Paint:                  93 certifications

Underground
Storage Tanks:            2 certifications

EMERGENCY CLEAN-UP EXPENSES APPROVED

The following nine (9) emergency clean-up expenditures occurred since the last report:

United States Environmental Services in the counties of:

Hinds, Hancock, Rankin, Copiah, Franklin and Warren.

ADMINISTRATIVE ORDERS APPROVED

Thirty-four (34) administrative orders issued by the Executive Director and approved by the Commission included the following matters:

Program Area Number of Orders Penalty Range
Large Construction Storm Water

1

 $5,000
NPDES

2

 $0 to $2,000
Solid Waste

1

 $8,000
Air

5

 $1,250 to $662,500
Underground Storage Tank

1

 $0
Ready-Mix

1

 $13,550
Small Construction Storm Water

1

 $4,000
SWPPP

1

 $7,500
Other

17

 $0 to $46,800

The remaining four (4) orders were not enforcement-oriented, but rather dealt with the approval of amendments, granting of evidentiary hearings and other routine administrative matters.

The next Commission meeting is scheduled for August 22, 2013.

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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U.S. Supreme Court Narrows the Definition of “Supervisor” Under Federal Discrimination Statutes

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On June 24, 2013, the United States Supreme Court narrowed the definition of “supervisor” as it relates to racial and sexual harassment claims, thereby raising the burden of proof for employees and former employees to prove liability on the part of their employer.

Under Title VII, an employer’s liability for workplace harassment depends on the status of the alleged harasser.  If the harassing employee is the plaintiff’s co-worker, the employer is liable only if it was negligent in controlling working conditions.  In cases in which the harasser is a “supervisor,” however, different rules apply.  If the supervisor’s harassment results in “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits”—the employer is strictly liable (i.e., the employer is held responsible for the employee’s actions regardless of the employer’sculpability or fault).  Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998).  But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing  behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.  Faragher v. Boca Raton, 524 U. S. 775, 807 (1998); Ellerth, 524 U.S. at 765.

On June 24, 2013, the U.S. Supreme Court decided the case of Vance v. Ball State University, No. 11-556, — U.S. — (2013). The African-American plaintiff-employee asserted that another White employee—who the plaintiff-employee alleged was her supervisor—glared at the plaintiff-employee, slammed pots and pans around her and blocked her on an elevator.  The trial court held that the employer was not responsible for the White employee’s alleged actions because, although she may have directed some of her work duties, she could not take tangible, adverse employment actions against the plaintiff-employee, and was therefore not a supervisor.  The Supreme Court agreed with the lower court’s ruling.  In affirming the ruling, the Supreme Court held that for purposes of an employer’s liability for an employee’s actions under Title VII, an employee is a “supervisor” only if he or she is empowered by the employer to take tangible employment actions against the victim. The Court based its holding on the framework adopted in Ellerth and Faragher which draws a sharp line between co-workers and supervisors and implies that the authority to take tangible em­ployment actions is the defining characteristic of a supervisor.

The Supreme Court’s ruling in Vance is a victory for employers.  The group of employees deemed to be supervisors is now more limited and somewhat easier to delineate.  Unless the employer has vested the individual with the power to hire, fire, promote, demote, transfer or discipline the complaining employee, the court must conduct the analysis regarding the employer’s liability under the co-worker framework for employer liability (which requires the plaintiff-employee to prove employer negligence in order to recover against the employer). An employee’s authority to take tangible actions may be proved or disproved by concrete evidence such as job descriptions and testimony as to past practices.  The Court’s adoption of this more narrow definition of “supervisor” will likely result in the issue of supervisor liability being decided more frequently at the summary judgment stage of litigation.

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

Steve Carmody
Labor and Employment Practice Group Chair

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U.S. Supreme Court Tightens Employees’ Retaliation Rights Under Federal Discrimination Statutes

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At the end of the 2013 term, the United States Supreme Court decided a case involving a former employee’s claim for discriminatory harassment and retaliation under Title VII.  In doing so, the nation’s highest court tightened the parameters necessary for employees to bring retaliatory discharge claims against their former employers.

Mississippi is an “employment at-will” state—meaning that employees for an indefinite term can have employment terminated “at the will” of the employer (or the employee) without legal repercussion.  In other words, an employer can generally fire an employee for good reason, bad reason or no reason at all.  There are certain federal and state law limitations to the “employment at-will” doctrine, such as Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, other federal laws and Mississippi common law regarding wrongful discharge.

On June 24, 2013, the U.S. Supreme Court decided the case of University of Texas Southwestern Medical Center v. Nassar, No. 12-484, — U.S. – (2013), which involved Nassar, a physician who was formerly employed at both the University of Texas and at Southwestern Medical Center.  Nassar alleged that his supervisor at the University harassed him on the basis of his religion and ethnic heritage.  Nassar resigned his position with the University, but secured a permanent position at the Medical Center.  However, shortly after resigning, another faculty member allegedly learned of Nassar’s complaints and objected to the permanent offer of employment with the Medical Center.  Nassar’s job offer was subsequently withdrawn and the physician sued for both harassment and retaliation under Title VII.

A jury awarded Nassar over $3 million in damages.  However, the Medical Center appealed, arguing that the trial judge erred in instructing the jury that it only had to find that retaliation was a motivating factor for the supervisor’s action (i.e., a mixed motive instruction).  Instead, the Medical Center argued that the trial court should have instructed the jury that it had to find that the adverse employment action would not have happened “but-for” the supervisor’s desire to retaliate.  In affirming the lower court’s ruling to set aside the jury award, the U.S. Supreme Court agreed with the Medical Center and held that employees “must establish that his or her protected activity was a ‘but-for’ cause of the alleged adverse action by the employer.”

The Supreme Court’s opinion in Nassar creates a different and more stringent standard of proof for retaliation cases, as opposed to “regular” employment discrimination cases arising under Title VII (or other discrimination statutes).  In typical discrimination cases, employers face exposure in “mixed motive” situations—that is, if a jury finds that wrongful discrimination was just a motivating factor (as opposed to the motivating factor) for an adverse employment decision.  For employers, the Nassar opinion provides important diminution of potential liability in retaliatory discharge cases.

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

Steve Carmody
Labor and Employment Practice Group Chair

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Mississippi Environmental Quality Permit Board Summary of Meeting Held July 9, 2013

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Environmental Quality Permit Board convened its regular monthly meeting at 9:00 a.m. on July 9, 2013, at the offices of the Mississippi Department of Environmental Quality in Jackson. Dennis Riecke chaired the meeting attended by all Board members. Minutes from the June meeting were approved, as were all non-controversial permits issued by the staff since the last meeting. Following a prepared agenda, items considered were as follows:

OFFICE OF POLLUTION CONTROL

Waste Management of Mississippi, Inc.
Pecan Grove Landfill and Recycling Center
(Harrison County)

(1) Reissuance and Modification Nonhazardous
Solid Waste Management Permit     SW02101A0400

(2) Reissuance and Modification NPDES
Storm Water Discharge Permit         MSS057843

(3) Reissuance State of Mississippi
Pretreatment Permit                            MSP091891

(4) Reissuance and Modification Title V
Air Permit to Operate Air Emissions
Equipment                                              1020-00048

Waste Management of Mississippi, Inc. applied for renewal of the four permits listed above for its Pecan Grove Landfill and Recycling Center located approximately six miles north of Pass Christian, Mississippi. The permit renewals include minor modifications related to the design of the facility, but not to the overall capacity of the facility. MDEQ held a public hearing on June 25 to receive comments regarding the permit renewals. No comments were received during the public comment period. Per staff’s recommendation, the Board voted to approve the renewal of the permits listed above.

OFFICE OF GEOLOGY

Surface Mining Bond Release:

Neely Trucking & Excavating
Rankin         P05-019AT

Surface Mining Permit to Cancel:

Oyd’s Dirt Service, Inc.
Smith          P93-097

The surface mining bond release and permit to cancel listed above were approved in accordance with the staff’s recommendation.

The next Permit Board meeting will be held on August 13, 2013.

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

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EMPLOYER MANDATE DELAYED UNTIL 2015

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On July 2, 2013, the Administration announced it is delaying the employer mandate for providing affordable health care coverage scheduled to begin January 1, 2014, as well as a delay in the related reporting requirements.  Below is the announcement from the Assistant Secretary for Tax Policy at the U. S. Treasury Department.  When the formal guidance outlining the transition is published within the next several days, we will provide an update.

Continuing to Implement the ACA in a Careful, Thoughtful Manner

By: Mark J. Mazur

7/2/2013

Over the past several months, the Administration has been engaging in a dialogue with businesses – many of which already provide health coverage for their workers – about the new employer and insurer reporting requirements under the Affordable Care Act (ACA).  We have heard concerns about the complexity of the requirements and the need for more time to implement them effectively.  We recognize that the vast majority of businesses that will need to do this reporting already provide health insurance to their workers, and we want to make sure it is easy for others to do so.  We have listened to your feedback.  And we are taking action.

The Administration is announcing that it will provide an additional year before the ACA mandatory employer and insurer reporting requirements begin.  This is designed to meet two goals.  First, it will allow us to consider ways to simplify the new reporting requirements consistent with the law.  Second, it will provide time to adapt health coverage and reporting systems while employers are moving toward making health coverage affordable and accessible for their employees.  Within the next week, we will publish formal guidance describing this transition.  Just like the Administration’s effort to turn the initial 21-page application for health insurance into a three-page application, we are working hard to adapt and to be flexible about reporting requirements as we implement the law.

Here is some additional detail.  The ACA includes information reporting (under section 6055) by insurers, self-insuring employers, and other parties that provide health coverage.  It also requires information reporting (under section 6056) by certain employers with respect to the health coverage offered to their full-time employees.  We expect to publish proposed rules implementing these provisions this summer, after a dialogue with stakeholders – including those responsible employers that already provide their full-time work force with coverage far exceeding the minimum employer shared responsibility requirements – in an effort to minimize the reporting, consistent with effective implementation of the law.

Once these rules have been issued, the Administration will work with employers, insurers, and other reporting entities to strongly encourage them to voluntarily implement this information reporting in 2014, in preparation for the full application of the provisions in 2015.  Real-world testing of reporting systems in 2014 will contribute to a smoother transition to full implementation in 2015.

We recognize that this transition relief will make it impractical to determine which employers owe shared responsibility payments (under section 4980H) for 2014.  Accordingly, we are extending this transition relief to the employer shared responsibility payments.  These payments will not apply for 2014.  Any employer shared responsibility payments will not apply until 2015.

During this 2014 transition period, we strongly encourage employers to maintain or expand health coverage.  Also, our actions today do not affect employees’ access to the premium tax credits available under the ACA (nor any other provision of the ACA).

Mark J. Mazur is the Assistant Secretary for Tax Policy at the U.S. Department of the Treasury.

Mississippi Environmental Quality Permit Board Summary of Meeting Held June 11, 2013

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Environmental Quality Permit Board convened its regular monthly meeting at 9:00 a.m. on June 11, 2013, at the offices of the Mississippi Department of Environmental Quality in Jackson. All but one Board member attended the meeting chaired by Jan Boyd. Minutes from the May meeting were approved, as were all non-controversial permits issued by the staff since the last meeting. Following a prepared agenda, items considered were as follows:

OFFICE OF POLLUTION CONTROL

City of Louisville, City of Louisville Solid Waste Landfill (Winston County)

Reissuance of Individual Stormwater Permit MSS058149

The City of Louisville Solid Waste Landfill was first permitted in 1996. The City of Louisville (City) holds two permits for this site, a solid waste permit (not up for renewal today) and a stormwater permit. The City has submitted all required documents to renew this stormwater permit. A public hearing was held regarding renewal of the permit and MDEQ did not receive any comments. The Board voted to approve the renewal of the stormwater permit.

OFFICE OF GEOLOGY

Surface Mining Bond Releases:

P & P Sand & Gravel
Marion         P08-008AAA

Harris Construction Company
Rankin         P88-007

The surface mining bond releases listed above were approved in accordance with the staff’s recommendation.

REFORMATTED AND RENUMBERED PERMIT BOARD REGULATIONS

Pursuant to the Administrative Procedures Act, the Permit Board regulations have been reformatted and renumbered. A public hearing was held by MDEQ on June 4, 2013 regarding the reformatting and renumbering of the Permit Board regulations. MDEQ legal staff reported to the Board that the public comments received were outside the scope of the public hearing, which simply dealt with the renumbering and reformatting of the regulations. The Board voted to adopt the regulations.

ELECTION OF BOARD CHAIRMAN AND VICE-CHAIRMAN FOR 2013-2014

The Board voted unanimously to elect the following:

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

Vice-Chairman – Leslie Royals, Office of Environmental Health, Mississippi State Department of Health

The next Permit Board meeting will be held on July 9, 2013.

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 May 23, 2013

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Commission on Environmental Quality convened at 9:00 a.m. on May 23, at the offices of the Mississippi Department of Environmental Quality in Jackson. Martha Dalrymple’s chaired the meeting attended by all members. Minutes from the last meeting held in April 2013 were approved. Following a prepared agenda, items considered were as follows:

REVISION TO THE STATE IMPLEMENTATION PLAN (SIP)

The State Implementation Plan (SIP) revision, which involves the Transportation Conformity requirements of Section 176(c) of the Clean Air Act (CAA), is a Memorandum of Agreement (MOA) concerning criteria, interagency consultation plans and programs in the partial area of DeSoto County, Mississippi designated as non-attainment. The parties to the MOA include the Mississippi Department of Environmental Quality (MDEQ), the Memphis Urban Area Metropolitan Planning Organization, the Mississippi Transportation Commission, the Mississippi Office of the Federal Highway Administration, Region 4 of the Federal Transit Administration and Region 4 of the Environmental Protection Agency. No comments were received during a public comment period held on this revision. The Commission voted to adopt the proposed SIP revision.

WATER POLLUTION CONTROL (CLEAN WATER) STATE REVOLVING FUND LOAN PROGRAM

During the 2013 legislative session, Senate Bill 2913 was passed and subsequently signed by the Governor on April 25, 2013. SB 2913 provided for the issuance of $1,000,000 in bonds to provide state matching funds required to obtain $5,000,000 in available federal assistance for the Water Pollution Control State Revolving Fund Loan Program. In order to initiate this process, the Commission voted to adopt a resolution of necessity for issuance of these bonds.

RECYCLING COOPERATIVE GRANT PROGRAM

MDEQ staff updated the Commission on the Recycling Cooperative Grants Program. The agency has finalized an announcement and application packet on the Recycling Cooperative Grants. The total amount of funds to be made available through this announcement is $1,000,000. These funds will be used to provide grant support to local government projects that will establish regional cooperative efforts to collect, process and market recyclables in underserved areas of the state.

DESIGNATION OF HEARING OFFICERS

Under Miss. Code Ann. § 49-17-33, the Commission voted to approve the designation of hearing officers in the following matters:

(1)   Ricky Luke, Special Assistant Attorney General, in the matter of Stephanie Howard, Executrix of the Estate of Gerald Donald (Wayne County)

(2)   Chuck Rubisoff, Special Assistant Attorney General, in the matter of Serenity Lane (Pearl River County)

UPDATE ON RESTORE ACT AND OTHER OIL SPILL RESTORATION ACTIVITIES

Trudy Fisher, Executive Director of MDEQ, and Richard Harrell, Director of MDEQ’s Office of Pollution Control, provided the Commission with an update on the RESTORE Act and other oil spill restoration activities. Fisher informed the Commission that there would be an announcement this week regarding work completed by the Gulf Coast Ecosystem Restoration Council, created by Congress under the RESTORE Act, and the draft comprehensive plan that should be released soon. Public meetings on the Gulf Coast will follow the release of this draft comprehensive plan.

The Phase I projects under early restoration are nearing completion. The Mississippi Oyster Cultch project will conclude this week. The Near-Shore Artificial Reef is being completed in existing permitted areas on the Mississippi Gulf Coast.

Proposed early restoration projects for Phase III have come directly from the public and local leaders. Fisher explained that we are now at the point of the natural resource damage assessment (NRDA) process of “scoping and public participation.” The proposed projects for Phase III of early restoration include:

(1)   Popps Ferry Causeway Park.

(2)   Hancock County Marsh Living Shoreline

(3)   Pascagoula Beachfront Promenade

(4)   Infinity Science Center

The Commission will receive updates on the progress of these projects at future meetings.

CERTIFICATIONS APPROVED

Asbestos:                     99 certifications

Lead Paint:                  45 certifications

Underground
Storage Tanks:            3 certifications

EMERGENCY CLEAN-UP EXPENSES APPROVED

The following eight (8) emergency clean-up expenditures occurred since the last report:

Complete Environmental & Remediation Co. in Rankin County.

United States Environmental Services in the counties of:

Tate, Scott, Lincoln, Harrison, Rankin and Tishomingo.

ADMINISTRATIVE ORDERS APPROVED

Seventeen (17) administrative orders issued by the Executive Director and approved by the Commission included the following matters:

Program Area

Number of Orders

 Penalty Range
Large Construction Storm Water

1

 $5,000
NPDES

5

 0 to $3,500
Solid Waste

1

 $6,500
Air

2

 $3,500 to $15,000
Pretreatment

3

 $6,598 to $25,000
Other

3

 0 to $4,000

The remaining two (2) orders were not enforcement-oriented, but rather dealt with the approval of amendments and other routine administrative matters.

The next Commission meeting is scheduled for June 27, 2013.

This Newsletter is a publication of the Environmental Department of the law firm of Brunini, Grantham, Grower & Hewes located in Jackson, Mississippi.

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Mississippi Environmental Quality Permit Board Summary of Meeting Held May 14, 2013

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Environmental Quality Permit Board convened its regular monthly meeting at 9:00 a.m. on May 14, 2013, at the offices of the Mississippi Department of Environmental Quality in Jackson. Jan Boyd chaired the meeting attended by all Board members. Minutes from the April meeting were approved, as were all non-controversial permits issued by the staff since the last meeting. Following a prepared agenda, items considered were as follows:

OFFICE OF POLLUTION CONTROL

State of Mississippi State-Wide General Permit
Vegetative Debris and Untreated Wood
Waste Composting Facility                SWGP-C1

This state-wide permit was first approved by the Board in 1998. Today, the MDEQ staff recommended that the Board vote once again to approve the state-wide general permit for Vegetative Debris and Untreated Wood Waste Composting Facility. The permit encourages more composting across the State of Mississippi, decreasing the amount of waste sent to landfills. Currently, there are 11 facilities in the State that are covered under this permit, but MDEQ has seen more interest from cities and counties around the State. On April 1, 2013, the permit went to public notice and MDEQ received one letter of concern regarding setback issues as related to composting facilities. Upon staff’s recommendation, the Board voted to approve the permit.

Alliance Consulting Group, LLC (Pearl River County)

Issuance of Water Quality Certification
WQC2012071

The proposed project, a sand processing facility, is located on approximately 78 acres near the industrial park in Picayune, Mississippi. MDEQ has previously issued three other permits to the applicant for the construction of this facility. A water quality certification is needed because approximately 1.9 acres of jurisdictional wetlands will be impacted by proposed operations at the facility. During public notice for the draft permit, residents from the nearby Ravenwood Subdivision submitted to MDEQ letters of concern regarding potential increased flooding in the area, health issues, noise impacts and decreases in property value in the area. Additionally, MDEQ staff noted that the site has previously been issued two Notices of Violation (NOV), but has resolved both NOVs to the agency’s satisfaction, including a civil penalty paid in full. Following statements made to the Board by representatives for the Ravenwood Subdivision and representatives for Alliance Consulting Group, LLC, the Board took a five minute recess to review all relevant information. Upon returning from the recess, a motion was made to accept MDEQ staff’s recommendation to approve the permit. The permit was approved by a majority vote of the Board with the Office of Fish & Wildlife abstaining.

OFFICE OF GEOLOGY

Surface Mining Bond Releases:

L.D. Hancock Family, LLC
Lee                 P94-136T

Robbie Robinson, Inc.
Rankin           P02-033

Tanner Construction Company, Inc.
Lawrence      P07-005A

Kentucky-Tennessee Clay Company
Panola           P97-008

The surface mining bond releases listed above were approved in accordance with the staff’s recommendation.

The next Permit Board meeting will be held on June 11, 2013.

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 April 25, 2013

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Commission on Environmental Quality convened at 9:00 a.m. on April 25, at the offices of the Mississippi Department of Environmental Quality in Jackson. Vice-Chair Chat Phillips chaired the meeting in Martha Dalrymple’s absence. Minutes from the last meeting held in February 2013 were approved. Following a prepared agenda, items considered were as follows:

BROWNFIELD COMPLETION

On November 21, 2002, the Commission reached a Brownfield Agreement (#4511-02) with Wolverine Tube, Inc. for the remediation of the former Wolverine Tube site in Greenville, Mississippi. On January 30, 2013, Wolverine Tube, Inc. sent a petition to the Commission to make a determination as to the completion of the Brownfield Agreement and as to the issuance of a “no further action” letter by the Executive Director. Following MDEQ’s review of the petition and the required site inspection, the staff determined that Wolverine Tube, Inc. has completed in accordance with the regulations Brownfield Agreement #4511-02. Per the staff’s recommendation, the Commission voted that the Notice of Brownfield Agreement Site be cancelled.

IMMEDIATE RESPONSE ACTION CONTRACTORS

The Commission approved the following as Immediate Response Action Contractors:

(1)   SCS Environmental Group, LLC, 114 Bailey Drive, Olive Branch, MS 38654

(2)   Singley Construction Co., Inc., 1001 Highway 13 South, Columbia, MS 39429

(3)   Walker-Hill Environmental, Inc., 4 South Poplar St., Foxworth, MS 39483

(4)   Waste Oil Collectors, Inc., 4001 Old Spanish Trail, Gautier, MS 39553

(5)   Performance Oil Equipment, Inc., 920 E. McDowell Road, Jackson, MS 39204

(6)   Complete Environmental & Remediation Co., LLC, 37 David Swan Lane, Purvis, MS 39475

(7)   Prewett Enterprises, Inc. (dba B&P), 6230 Stateline Rd., Walls, MS 38680

SERENITY LANE (PEARL RIVER COUNTY)

Serenity Lane residents previously requested an evidentiary hearing before the Commission to seek to direct Fort James Corporation to remediate an alleged old dump purportedly caused by Fort James’ predecessor and located in the Serenity Lane Subdivision. MDEQ reviewed the information submitted by Serenity Lane residents and Fort James Corporation and determined in a “no further action” letter that it did not intend to take further action pertaining to the site (MDEQ routinely conducts investigations for the Commission as it serves as staff  for the Commission). On October 8, 2012, Chuck Rubisoff, a Special Assistant Attorney General with the Attorney General’s Office, presided over a telephonic hearing to determine whether jurisdiction exists to conduct a Commission hearing related to Serenity Lane residents’ request for an evidentiary hearing. Rubisoff reported to the Commission that he determined that it was at the Commission’s discretion whether an evidentiary hearing should be granted to Serenity Lane residents. The Board voted to adopt Rubisoff’s recommendation to grant the evidentiary hearing and to appoint a hearing officer for the evidentiary hearing.

RENUMBERED AND REFORMATTED COMMISSION AND PERMIT BOARD REGULATIONS WITH STATUTORY AUTHORITIES PURSUANT TO THE ADMINSTRATIVE PROCEDURES ACT

The amended Administrative Procedures Act (APA) requires a statewide administrative code and designates the Secretary of State’s (SOS) office as the official registrar for rules of all state agencies and the publisher of the Mississippi Administrative Bulletin and the Mississippi Administrative Code. The APA amendments specifically require uniform formatting and numbering of all state agency regulations, including the regulations of the Commission and the Mississippi Environmental Quality Permit Board (Permit Board). The APA amendments further require citation to statutory authorities for the regulations. In order to comply with the amended APA, the MDEQ staff is adjusting all of the regulations of the Commission and the Permit Board to be consistent with the SOS’s requirements. Changes to the regulations are not substantive and do not affect content; rather, the changes simply reflect the newly required formatting and numbering and provide recitation of statutory authorities for the regulations. The renumbered regulations are available for public review on MDEQ’s website as of today, April 25, 2013. A public hearing is scheduled for June 4, 2013 at 2:00 p.m. at the MDEQ offices on Amite Street.

CERTIFICATIONS APPROVED

Asbestos:                     245 certifications

Lead Paint:                  130 certifications

Underground
Storage Tanks:            10 certifications

Wastewater
Operator:                      47 certifications

EMERGENCY CLEAN-UP EXPENSES APPROVED

The following three (3) emergency clean-up expenditures occurred since the last report:

United States Environmental Services in the counties of:

Newton, Tishomingo and Hancock.

ADMINISTRATIVE ORDERS APPROVED

Eighteen (18) administrative orders issued by the Executive Director and approved by the Commission included the following matters:

Program Area

Number of Orders

 Penalty Range
Large Construction
Storm Water		 1 $7,500
NPDES 5 0 to $18,000
Solid Waste 1 0
Demolition Operations 2 0 to $3,750
Title V 1 $10,500
Other 3 0 to $5,000

The remaining six (6) orders were not enforcement-oriented, but rather dealt with the approval of amendments and other routine administrative matters.

The next Commission meeting is scheduled for May 23, 2013.

This Newsletter is a publication of the Environmental Department of the law firm of Brunini, Grantham, Grower & Hewes located in Jackson, Mississippi.

This Newsletter is not designed or intended to provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.

IRS Circular 230 Notice

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

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Mississippi Environmental Quality Permit Board Summary of Meeting Held April 9, 2013

by

Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Environmental Quality Permit Board convened its regular monthly meeting at 9:00 a.m. on April 9, 2013, at the offices of the Mississippi Department of Environmental Quality in Jackson. Jan Boyd chaired the meeting attended by all Board members. Minutes from the March meeting were approved, as were all non-controversial permits issued by the staff since the last meeting. Following a prepared agenda, items considered were as follows:

OFFICE OF POLLUTION CONTROL

BFI Waste Systems of Mississippi, LLC, Little Dixie Landfill (Madison County)
Modification of Pretreatment Permit
MSP090592

BFI Waste Systems of Mississippi, LLC submitted an application for modification of the current pretreatment permit for the Little Dixie Landfill located in Madison County. The modification will allow for the transport of leachate from the landfill to the City of McComb’s wastewater treatment facility, which is equipped to handle leachate from the Little Dixie Landfill. No comments were received at a public hearing held by the MDEQ staff regarding modification of this permit. Per the MDEQ staff’s recommendation, the Board voted to approve the permit modification.

OFFICE OF GEOLOGY

Surface Mining Bond Releases:

Jim Castleberry dba Castleberry Trucking
DeSoto        P94-082

Jim Castleberry dba Castleberry Trucking
DeSoto        P95-054

Jim Castleberry dba Castleberry Trucking
DeSoto        P95-119

Jim Castleberry dba Castleberry Trucking
DeSoto        P00-012

Jim Castleberry dba Castleberry Trucking
DeSoto        P00-013

Jim Castleberry dba Castleberry Trucking
DeSoto        P03-007

Columbus Brick Company
Lowndes      P95-118

Oddee Smith Construction, Inc.
Jefferson Davis       P96-016T

Boral Bricks Inc.
Kemper        P94-138

Surface Mining Permit Transfer:

Perrett Enterprises, Inc.

transfer to

Pierce Construction and Contract Hauling, Inc.
Hinds         P09-009T

The surface mining bond releases and surface mining permit transfer listed above were approved in accordance with the staff’s recommendation.

The next Permit Board meeting will be held on May 14, 2013.

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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