Brunini Law

UPDATE: Fifth Circuit Court of Appeals Issues Stay Blocking OSHA’s Vaccinate-or-Test Rule….For Now

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By:  Chris Fontan

Less than 2 days after the Occupational Safety and Health Administration (“OSHA”) finally released its anticipated, and highly controversial, emergency temporary standard (“ETS”) addressing COVID-19 testing and vaccination, a federal court has thrown up a huge road block in the path of its full implementation.  The Court’s injunction temporarily prevents OSHA from enforcing its controversial new ETS.

 As we previously reported, on November 4, 2021, OSHA unveiled its controversial ETS, which essentially requires employers with 100 or more employees to either mandate COVID vaccinations or proof of negative COVID tests on a weekly basis as a condition of employment. As predicted, soon after President Biden initially instructed OSHA to begin working on plans for the proposed rule, the ETS was met with immediate legal challenges. Most notably, a number of parties, including several businesses, advocacy groups, and the states of Texas, Louisiana, Mississippi, South Carolina, and Utah filed a motion for a preliminary and a permanent injunction with the U.S. Court of Appeals for the Fifth Circuit.

On Saturday, November 6, 2021, the Fifth Circuit granted their “emergency motion” and entered a preliminary stay barring enforcement of the ETS. Citing “grave statutory and constitutional issues,” the Court stayed the ETS until further notice by the Court. In addition, the Court ordered the parties to submit further briefing about the validity of the ETS by November 8th and 9th respectively. The stay order issued on November 6th is not a final ruling on the validity of the ETS, but will halt its implementation at least temporarily.

Louisiana Attorney General Jeff Landry said the action stops Democratic President Joe Biden “from moving forward with his unlawful overreach.” Louisiana was one of the states bringing the lawsuit seeking to stop enforcement of the ETS.  “This is a great victory for the American people out there. Never before has the federal government tried in such a forceful way to get between the choices of an American citizen and their doctor. To me that’s the heart of the entire issue,” he said.  Meanwhile, Solicitor of Labor Seema Nanda said the U.S. Department of Labor is “confident in its legal authority” to issue the rule, stating that the OSH Act of 1970 “explicitly gives OSHA the authority to act quickly in an emergency” and OSHA is “fully prepared to defend [the ETS] in court.”

The future of the ETS remains uncertain due to this and other pending legal challenges. While the final result is unknown, it will take weeks of planning for employers to comply with the ETS’s deadlines. With that in mind, employers should continue preparing for the ETS as if it is going to take effect while litigation continues.

 

 

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OSHA Finally Releases COVID Vaccine/Testing Mandate for Employers

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By: Chris Fontan

On Thursday, November 4, 2021, the Occupational Health and Safety Administration (“OSHA”) finally released its anticipated, and already controversial, emergency temporary standard (“ETS”) addressing COVID-19 testing and vaccination. The ETS—which is a “mandate-or-test” workplace vaccine rule—applies to most employers with 100 or more employees (“Employers”).  The ETS does not apply to: (1) employers who are covered by the recently-released Executive Order mandating vaccinations for federal employees and employees of federal contractors; (2) healthcare employers covered by the prior healthcare ETS; and/or (3) employees working from home or exclusively outdoors. After weeks of speculating over what was likely to be in the proposed rule, Employers are now left with the task of navigating their way through this new mandate.

Here is a general overview of the OSHA ETS:

100-Employee Threshold. In general, the OSHA ETS applies to employers with 100 or more employees. Unlike other OSHA standards that count employees on an “establishment” basis, the ETS covers any private employer with 100 or more employees across the entire company. This broad definition is much more inclusive and will affect many more employers than many previous OSHA standards. The ETS also expressly covers part-time, full-time, and remote employees in its “100 employee” count.

Vaccination Requirement. The ETS requires Employers develop, implement, and enforce a written, mandatory COVID-19 vaccination policy.  To meet this requirement, the policy must require vaccination of all employees, other than those for whom a vaccine is medically contraindicated, for whom a medical necessity requires a delay in vaccination, or who are otherwise entitled to a reasonable accommodation under the Americans with Disabilities Act or Title VII of the Civil Rights Act because they have a disability or sincerely held religious beliefs that conflict with the vaccination requirement.

As part of the required policy, the ETS requires Employers determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. At the same time, Employers must remain cognizant of their obligations to maintain the confidentiality of employee medical information, since OSHA and the EEOC view vaccine-related information like all employee medical information.

Testing Alternative. Consistent with President Biden’s initial announcement, the OSHA ETS also includes an exception from the vaccine mandate for Employers that instead establish, implement, and enforce a written policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.  Those employees who are not fully vaccinated (including those entitled to reasonable accommodations for religious or medical reasons) must be tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).

Employers must maintain a record of each test result. Employees who fail to provide documentation of a COVID test result must be excluded from the workplace until they provide such test result. Notably, the ETS excuses any employees who test positive or are diagnosed with COVID-19 from these testing requirements for 90 days following their positive test or diagnosis.

Face coverings. The ETS requires Employers to ensure that each employee who is not fully vaccinated (thus, those opting for the testing alternative) wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances, including: when an employee is alone in a room with floor to ceiling walls and a closed door; for a limited time while the employee is eating or drinking at the workplace, or for identification purposes in compliance with safety and security requirements; when an employee is wearing a respirator or facemask; or where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would excuse compliance. In addition, employers must not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless it creates a serious workplace hazard (e.g., interfering with the safe operation of equipment).

Paid Leave.  As part of the ETS, Employers are required to provide employees “reasonable time”—defined as up to four hours of paid time, to receive each vaccination dose, including travel time.  Employers may not require use of accrued sick or personal time for these purposes. In addition, Employers must provide reasonable time and paid sick leave to recover from side effects experienced following each dose. Employers may require use of accrued sick or personal time for these purposes.

Positive COVID-19 tests and employee removal. The ETS also mandates that Employers require their employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19, regardless of vaccination status. Once such notice is provided, the Employer must immediately remove the employee from the workplace, regardless of vaccination status and the worker must remain removed from workplace until they meet specified criteria for returning to work. Importantly—the ETS does not require that Employers provide paid leave to employees who are removed from the workplace because of a COVID-19 positive result or diagnosis, though paid time may be required by other laws, or by a collective bargaining agreement.

Notice to employees. Under the ETS, Employers are required to provide employees the following (in an appropriate language and at a literacy level):

  • Information about the requirements of the ETS and workplace policies and procedures established to implement the ETS;
  • The CDC document “Key Things to Know About COVID-19 Vaccines”;
  • Information about protections against retaliation and discrimination; and
  • Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

Interaction with OSHA and Recordkeeping. As an OSHA requirement, the ETS requires Employers to report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization. In addition, at OSHA’s request, an Employer will have four (4) business hours to provide its policy on vaccination/testing, and until the end of the next business day to provide all other records that must be maintained (i.e. proof of each employee’s vaccination status or test results as required by the ETS).  Employees also have the ability to request their own vaccination or testing records, and may submit requests for the aggregate number of fully vaccinated employees in the workplace along with the total number of employees at that workplace.

Key Dates.  Employers are required to be in compliance with the bulk of the ETS by Sunday, December 5, 2021.  Employers must begin obtaining weekly test results for employees who have not received all doses required for primary vaccination no later than Tuesday, January 4, 2022.

 

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Mississippi Environmental Quality Permit Board

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Summary of Meeting Held October 12, 2021

Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Environmental Quality Permit Board (“Board”) convened at 9:00 a.m. on October 12, 2021.  This meeting was held through a telephone conference call and the public was invited to listen to the deliberations of the Board. The Board first approved minutes from the previous meeting held on September 14, 2021 and the non-controversial actions/certifications completed by the staff since the September meeting. Then, following a prepared agenda, the Board considered items as follows:

OFFICE OF GEOLOGY

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

Surface Mining Bond Release

Permittee County Permit Staff Recommendation
Krystal Gravel, Inc. Copiah P94-067T1 Final 50%
Krystal Gravel, Inc. Copiah P91-029T1 Final 40%
Krystal Gravel, Inc. Copiah P87-003 Final 50%
Krystal Gravel, Inc. Copiah P87-012 Final 20%

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

Surface Coal Mining Bond Release

Permittee County Permit
Liberty Fuels Kemper MS-003

Other Business

No Other Business was discussed.

The next Permit Board meeting will be held on November 9, 2021, at 9 a.m.

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

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

 

Mississippi Environmental Quality Permit Board Summary of Meeting Held August 10, 2021

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Environmental Quality Permit Board (“Board”) convened at 9:00 a.m. on August 10, 2021.  This meeting was held through a telephone conference call and the public was invited to listen to the deliberations of the Board. The Board first approved minutes from the previous meeting held on July 13, 2021 and the non-controversial actions/certifications completed by the staff since the February meeting. Then, following a prepared agenda, the Board considered items as follows:

OFFICE OF GEOLOGY

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

Surface Mining Bond Release

Permittee County Permit Staff Recommendation
Krystal Gravel, Inc. Copiah P87-003 Additional 10%
Krystal Gravel, Inc. Copiah P87-012 Additional 30%
Krystal Gravel, Inc. Copiah P91-029T Additional 20%
Krystal Gravel, Inc. Copiah P94-067T1 Additional 10%
Krystal Gravel, Inc. Copiah P09-007 Additional 30%

 

Other Business

Lisa Ouzts, MDEQ Senior Attorney, presented and the Board approved Proposed Findings of Fact and Conclusions of Law related to the evidentiary hearing regarding the issuance of Section 401 Water Quality Certification No. WQC2018036 to the Mississippi Port Authority.  .

 Roy Furrh, MDEQ Chief Counsel, NCL Waste has withdrawn its application and is no longer before the Permit Board.

The next Permit Board meeting will be held on September 14, 2021, at 9 a.m.

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

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

 

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President Biden Issues Executive Order Encouraging Federal Limits on Non-Compete Agreements

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By: Chris Fontan

On Friday, July 9, 2021, President Joe Biden signed his Executive Order on Promoting Competition in the American Economy (the Executive Order).  In the Executive Order, President Biden directed various federal agencies to implement over seventy specific actions aimed at broadly increasing competition in the American economy by impacting a wide range of economic activity, including mergers and acquisitions, occupational licensing, anticompetitive behavior, and prices of medical devices and prescription drugs.

One of the specific activities the Executive Order seeks to address is the use by companies of non-competition agreements—that is, those agreements that limit the ability of individual employees to work for competitors after leaving their employer. In Section 5(g) of the Executive Order, President Biden encouraged the Federal Trade Commission (“FTC”) to utilize its statutory rulemaking authority “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”  Interestingly, the Executive Order expressly states that its goal is to curb the “unfair” use of non-compete clauses. However, in remarks accompanying the Executive Order, the White House clearly stated that President Biden “encourages the FTC to ban or limit non-compete agreements” altogether.

During a public statement made at the signing of the Executive Order, President Biden denounced the “ridiculous” prevalence of non-competition agreements in the United States. As part of his argument in support of the Executive Order, the President alleged that:

  • 1-in-3 American businesses required employees to sign non-compete agreements, and
  • 1-in 5 American workers without a college degree are subjected to non-compete agreements.

President Biden argued these agreements, in many cases, were not implemented to protect any legitimate interest of the employer, but instead were put in place to “keep wages low.”

Impact of the Executive Order

A comprehensive rule governing non-competes would be an unprecedented step from the federal government.  Historically, the regulation of non-compete agreements has been left to the states, many of which have recently passed legislation of their own.  Recent state legislation has focused, among other issues, on restricting the use of non-competition agreements to employees above a certain compensation level. The Executive Order does not offer any details on whether these are the types of limitations President Biden would like the FTC to consider.

As written, the Executive Order “encouraged” the FTC to “ban or limit non-compete agreements”—far short of the type of sweeping prohibition that many felt President Biden would try to implement by executive action following his promises on the campaign trail. Instead, President Biden essentially asked the FTC to look at using its authority to address the issue. Moving forward, there are a wide range of potential avenues that American employers and employees could see, such as:

  • The FTC may attempt to prohibit the use of all non-competition provisions.
  • The FTC may attempt to prohibit the use of all non-compete provisions, as well as any other similar restrictive covenants—such as customer non-solicitation provisions or co-employee non-piracy provisions.
  • The FTC may attempt to prohibit the use of non-compete provisions with respect to a specific subset of employees—such as blue collar or lower-wage earning employees.
  • The FTC may attempt to regulate and restrict the method in which non-competition provisions are utilized—such as by requiring disclosure of a non-competition requirement to prospective employees in advance.

Despite the harsh rebuke contained in President Biden’s public statements and accompanying remarks, it seems unlikely that the FTC would pursue a complete ban on non-compete agreements.  Such a move would be met by strong opposition from the business community. Non-competes are viewed as vital by many employers seeking to protect their trade secrets and goodwill, among other legitimate business interests.

The express use of the phrase “unfair use” in the Executive Order suggest that the FTC may take a more moderate approach of using its regulatory power to attempt to limit the use of non-compete agreements with blue collar or lower-wage earning employees.  Even so, the administrative rulemaking process likely will take several months or even years.  Additionally, many question whether the FTC has the authority to regulate non-compete restrictions in the first place. That issue will almost certainly be litigated.

For now, employers are encouraged to continue to review their non-compete agreements for compliance with state law, and to contact their labor and employment counsel for additional information concerning these developments.  If you need Labor & Employment counsel, please contact any member of Brunini’s Labor & Employment Practice Group.

 

 

 

 

 

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Mississippi Commission on Environmental Quality Summary of Meeting Held June 24, 2021

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Commission on Environmental Quality (“MCEQ”) convened at 9:00 a.m. on May 27, 2021.  This meeting was held in-person and through a telephone conference.  The public was invited to listen to the deliberations of the Commission on the conference phone.  The Commission first approved minutes from the previous meeting held on May 27, 2021.  Then, following a prepared agenda, the Commission considered items as follows:

Water Pollution Control Revolving Loan Fund (WPCRLF) Program, Adoption of FY-2021 Intended Use Plan

The staff recommended and the Commission approved adoption of the FY-2021 Intended Use Plan. This document identifies the loan funds available for the construction of wastewater infrastructure, the local governments to receive these loan funds, the loan interest rate, program deadlines, and other related information. Public comments on the draft Intended Use Plan have been solicited through a public comment period and a public hearing and no comments were received.

Water Pollution Control Revolving Loan Fund (WPCRLF) Program, Resolution of Necessity to Issue Bonds

During the 2021 legislative session, Senate Bill 2971 was passed and subsequently signed by the Governor. This bill provided for the issuance of $2,870,000 in bonds to provide state matching funds required to obtain $14,350,000 in available federal assistance to this program. The funds are loaned at low interest rates to facilitate the construction or improvement of wastewater treatment facilities in the state. In order to initiate this process, the Commission must adopt a Resolution of Necessity for issuance of these bonds. MDEQ staff provided copies of the Resolution to the Commission for consideration and recommended and the Commission adopted the Resolution of Necessity to issue the bonds.

Proposed Amendments to Regulations for Water Quality Criteria for Intrastate, Interstate, and Coastal Waters (11 Miss. Admin. Code Pt. 6, Ch. 2)

MDEQ staff recommended and the Commission adopted the proposed amendments to the State’s water quality standards (WQSs). MDEQ is required by the Clean Water Act to routinely review and update the state’s water quality standards document in a process known as the triennial review. Revisions to the State’s WQSs were made as part of the current triennial review process. A 45-day public comment period for the draft modifications was held from Thursday, February 11 until Monday, March 29, 2021. A public hearing regarding the proposed regulations was held on Tuesday, March 30, 2021. A request was submitted on March 29, 2021, requesting a 10-day extension to the public comment period regarding the proposed amendments. The extension request was approved by MDEQ. Therefore, written comments regarding the draft modifications were accepted until Friday, April 9, 2021, at 5:00 p.m. MDEQ staff have reviewed, evaluated, and responded to comments received. The redline version of the proposed amendments was provided to the Commission for review along with all comments received and the responsiveness summaries. The last modifications to Mississippi WQSs were adopted by the Commission on February 25, 2016 and were approved by EPA on January 18, 2017.

Commission Approval of Proposed Regulation 11 Miss. Admin. Code Pt. 7, Ch. 4, entitled Mississippi Commission on Environmental Quality Dam Safety Grant Program Regulations

MDEQ staff recommended and the Commission approved and adopted the proposed regulations implementing a program to be administered by MDEQ, whereby applicant high hazard dam owners may apply for a grant to assist them with work on eligible high hazard dams in the state to improve the safety of such dams to protect downstream lives and property.  An applicant must provide matching funds of at least 35 percent of the grant amount. The funding for the grants is provided by Section 19 of H.B. 1730, which passed and became law in the 2020 legislative session. Additional funding was provided by the Legislature in 2021. A public hearing on the proposed regulations was held on June 15, 2021, and a public comment period was allowed as well.

Commission Approval of Brownfield Agreement – Reda, LLC – Columbus, MS

MDEQ staff recommended and the Commission approved the Brownfield Agreement between the Commission and REDA, LLC regarding the remediation of brownfield property located at 234 Alabama Street, Columbus, Mississippi. The administrative record for this environmental response project is referred to as the Supersonic Car Wash site. Supersonic Car Wash, which is located adjacent to a drycleaner, discovered chlorinated solvents beneath their property. The staff of the MCEQ believes the Supersonic Car Wash site may have been impacted by the adjacent drycleaners as historical records do not reveal use of chlorinated solvents on the property. REDA, LLC has agreed that the proposed remediation measures will be through filing a land use restriction with the property deed and entering into a Brownfield Agreement. The Brownfield Agreement Site will be subject to an environmental covenant restricting the future site use, including all impacted media. The draft Brownfield Agreement has completed the 45-day public notice period on June 23, 2021. No comments were received. MDEQ staff have evaluated the proposed Brownfield Agreement and took the position that, with the conditions and restrictions contained within the proposed Brownfield Agreement, the site will be in compliance with all applicable state and federal laws and standards and will be protective of the public health and the environment once the Brownfield Agreement is completed.

CERTIFICATIONS APPROVED

Asbestos:                     139 certifications

Lead Paint:                  42 certifications

Emergency

Clean-up Expenses:     3 emergency expenditure

 

ADMINISTRATIVE ORDERS APPROVED

Ten (10) Agreed Orders were issued by the Executive Director and approved by the Commission since the last report.

The next Commission meeting is proposed to be on July 22, 2021, at 9 a.m.

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

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

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Department of Labor Issues OSHA’s COVID-19 Emergency Temporary Standards and Safety Guidance

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By: Claire Williams

 

On Thursday, June 10, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued a long anticipated emergency temporary standard (“ETS”).   In an unexpected turn, the ETS is only mandatory for employers in the health care industry.  OSHA also issued voluntary guidelines for employers outside of the health care industry.

Requirements for Health Care Industry Employers

Under OSHA’s ETS, most health care employers are required to perform the following measures:

  • Develop and implement a written COVID-19 plan;
  • Screen employees and non-employees that enter the workplace;
  • Mandate that face masks be worn at all times, with limited exceptions;
  • Practice social distancing of all people when indoors, with limited exceptions;
  • Adhere to certain cleaning and disinfection requirements;
  • Ensure proper ventilation of workplace (if applicable);
  • Notify proper parties of exposure or potential exposure to COVID-19;
  • Support COVID-19 vaccinations by providing reasonable time and paid live to employees for vaccination and any side effects following vaccination;
  • Provide COVID-19 training to employees; and
  • Report COVID-19-related hospitalizations and deaths to OSHA.

Guidelines for Non-Health Care Industry Employers

For employers not covered by the ETS, including employers outside the health care industry, OSHA issued non-binding guidance designed to mitigate and prevent the spread of COVID-19 in the workplace.  The guidance focuses on protecting unvaccinated and otherwise “at-risk” workers.  As an incentive for employers to encourage employee vaccinations, the guidance provides that, except for workplace settings covered by the ETS, employers with a fully vaccinated workforce no longer need to take steps to protect workers from COVID-19 exposure in the workplace.  If all employees are not fully vaccinated, however, then OSHA recommends that employers provide paid time off for employees to get vaccinated; instruct workers who are infected with, or have been exposed to COVID-19 to stay home from work; implement social distancing for unvaccinated and otherwise at-risk workers in communal areas; provide unvaccinated or otherwise at-risk workers with face coverings; provide COVID-19 training to employees; maintain proper ventilation systems; perform routine cleaning and disinfection; and continue to follow all other mandatory OSHA standards.

OSHA further recommends that employers at higher-risk workplaces (such as manufacturing facilities; meat, seafood and poultry processing facilities; and high-volume retail and grocery establishments), with mixed-vaccination status workers, implement additional precautions to those mentioned above in order to minimize the risk of COVID-19 infection.  These additional precautions include staggered break schedules; staggered arrival and departure times; visual cues as a reminder to maintain social distancing; proper ventilation; and proper spacing of workers on food processing or assembly lines.

We are committed to our clients and will continue to monitor legislation and regulations for their potential impact.  In the meantime, if you are unsure if the mandatory ETS applies to you or have questions about implementation of OSHA’s requirements or guidelines, we encourage you to consult with your Labor & Employment counsel.  If you need Labor & Employment counsel, please contact any member of Brunini’s Labor & Employment Practice Group.

 

 

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Mississippi Environmental Quality Permit Board Summary of Meeting Held June 8, 2021

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Environmental Quality Permit Board (“Board”) convened at 9:00 a.m. on June 8, 2021.  This meeting was held through a telephone conference call and the public was invited to listen to the deliberations of the Board. The Board first approved minutes from the previous meeting held on May 11, 2021 and the non-controversial actions/certifications completed by the staff since the February meeting. Then, following a prepared agenda, the Board considered items as follows:

OFFICE OF GEOLOGY

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

Surface Mining Bond Release

Permittee County Permit Staff Recommendation
Berg-Cowan Development, LLC Rankin P15-009 Final 90%
Berg-Cowan Development, LLC Rankin P18-001 Final 90%
Krystal Gravel Copiah P87-040T2 Final 70%

 

Waste Division/Solid Waste Permitting Branch & Environmental Permits Division

Air II Branch; Water II Branch; and 401/Stormwater Branch

NCL Waste LLC, North County Line Landfill (“NCL”) – Madison County
Consideration of Denial of:

Solid Waste Mgmt. Permit (SW0450010579

Air Permit to Construct (1720-00088)

NPDES Storm Water Permit (MSS062332)

Waste Water Pretreatment Permit (MSP092399)

401 Water Quality Certification (WQC20180029)

(Items presented jointly between the Waste Division and Environmental Permits Division

MDEQ staff provided a brief history of the permit applications and then discussed Amended Miss. Code Ann. §17-17-227 and 229 and newly codified Miss. Code Ann. §17-17-237 as passed during the Mississippi Legislature’s 2021 Session.  Based on the newly passed legislation, MDEQ staff recommended denial of the permit applications. Two members of the public spoke against the permit applications. No representatives for NCL appeared at the meeting; however, it was noted that the Board received a written request for additional time to respond. After some discussion, the Board denied the permit applications by a unanimous vote of all Permit Board members present.

Election of Officers – Chair and Vice-Chair (effective July 1, 2021 to June 20, 2022)

Mr. Furrh MDEQ Chief Counsel noted that is customary that officers rotate among the different state departments which the Board members represent.  He further went to say that Les Herrington is currently in the rotation to become Chair for this coming election.  He thanked outgoing Board Chair Jennifer Whitman for her service for this last year. New officers will take office effective as of the July meeting to coincide with the State of Mississippi’s fiscal year. Les Herrington was elected as Chairman and David Snodgrass was elected Vice-Chair.

 Other Business

Roy Furrh, stated that Permit Board meetings will move back to face-to-face meetings in the near future.  Chairman, Jennifer Whittmann offered to host future Board meetings on the Coast.

The next Permit Board meeting will be held on July 13, 2021, at 9 a.m.

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

 

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

 

Mississippi Commission on Environmental Quality Summary of Meeting Held May 27, 2021

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Commission on Environmental Quality (“MCEQ”) convened at 9:00 a.m. on May 27, 2021.  This meeting was held through a telephone conference and Zoom call.  The public was invited to listen to the deliberations of the Commission on the conference phone and Zoom lines.  The Commission first approved minutes from the previous meeting held on April 22, 2021.  Then, following a prepared agenda, the Commission considered items as follows:

Request from the Northeast Mississippi Solid Waste Management Authority (The “Authority”) for a Variance to State Siting Criteria for the Proposed Expansion Area at the Authority’s Municipal Solid Waste Landfill

Staff of the MDEQ Waste Division presented information regarding the landfill siting criteria and information on the existing Northeast Mississippi Regional Landfill (“Northeast Landfill”). The Authority and its experts then presented the details of proposed expansion plans and relevant information regarding the proposed variance request.

The Mississippi Nonhazardous Solid Waste Management Regulations (11 Miss. Admin. Code Pt. 4 Ch. 1.), states that “New landfills shall be located where there are adequate naturally occurring geological materials present of low permeability to act as a buffer between the base of the landfill liner and the top of the uppermost aquifer. Such materials shall generally consist of clays, silty clays, clayey silts, or other soils which have an average hydraulic conductivity of 1 x 10-6 cm/sec or less. The thickness, or depth, of these materials shall extend to at least five feet immediately beneath the base of the landfill liner.” The Authority is proposing an expansion of the disposal area at the existing Northeast Landfill. Portions of the proposed disposal area (approximately 14%) do not appear to have the required naturally-occurring buffer.  MDEQ staff noted that granting the variance does not guaranty the issuance of a permit and that the Authority will now have to go through Permit Board approval, including public hearings and comment period.  No one appeared in opposition to the variance.  After some discussion, the request for variance was approved.

Commission Approval of Brownfield Agreement – Delmar Plaza Holdings, LLC

The MDEQ staff recommended and the Commission approved the Brownfield Agreement between the Commission and Delmar Plaza Holdings, LLP (Delmar) regarding the remediation of brownfield property located at 12057 Highway 49 North in Gulfport, Mississippi (Delmar Brownfield Site). Delmar has agreed that the proposed remediation measures will be through the biological enhanced reductive dechlorination and in-situ chemical reduction pathways, and has also agreed to the filing of a land use restriction with the property deed, and to enter into a Brownfield Agreement. The Delmar Brownfield Site will be subject to an environmental covenant restricting the future site use, including all impacted media. The draft Brownfield Agreement has completed the 30-day public comment period on May 10, 2021. No comments were received. The MDEQ staff have evaluated the proposed Brownfield Agreement and stated that, with the conditions and restrictions contained within the proposed Brownfield Agreement, the Delmar Brownfield Site will be in compliance with all applicable state and federal laws and standards and will be protective of the public health and the environment once the Brownfield Agreement is completed by Delmar.

Restrictive Use Agreed Order and Environmental Covenant for FC Meyer Packaging, LLC

Pursuant to the Commission’s delegation regulations (11 Miss. Admin. Code Pt. 1, R.1.1.Y.), the Executive Director of MDEQ approved the Restrictive Use Agreed Order and Environmental Covenants between the Commission and FC Meyer Packaging, LLC regarding the remediation of property located at 101 Ascher Street, Quitman, Clarke County, Mississippi. FC Meyer Packaging, LLC operated the site as a cardboard packaging manufacturing facility. Environmental Site Assessments have revealed presence of trichloroethene impacting groundwater at concentrations in excess of Target Remediation Goals (TRGs). Therefore, remediation of the site has been determined by MDEQ staff to be necessary. The MDEQ staff has evaluated the proposed Restrictive Use Agreed Order and Environmental Covenant and stated that, with the conditions and restrictions contained within; the site will be in compliance with applicable state and federal laws and standards and will be protective of the public health and the environment.  This agenda item is for reporting purposes only.

CERTIFICATIONS APPROVED

Asbestos:                     84 certifications

Lead Paint:                  60 certifications

Wastewater

Operator:                     11 certifications

Emergency

Clean-up Expenses:     4 emergency expenditure

ADMINISTRATIVE ORDERS APPROVED

Eleven (11) Agreed Orders and three (3) Amended Orders were issued by the Executive Director and approved by the Commission since the last report.

The next Commission meeting is proposed to be on June 24, 2021, at 9 a.m.

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

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

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Mississippi Environmental Quality Permit Board Summary of Meeting Held May 11, 2021

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Environmental Quality Permit Board (“Board”) convened at 9:00 a.m. on May 11, 2021.  This meeting was held through a telephone conference call and the public was invited to listen to the deliberations of the Board. The Board first approved minutes from the previous meetings held on April 6, 2021, April 13, 2021 and April 23, 2021 and the non-controversial actions/ certifications completed by the staff since the February meeting. Then, following a prepared agenda, the Board considered items as follows:

OFFICE OF GEOLOGY

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

Surface Mining Bond Release

Permittee County Permit Staff Recommendation
A&P Gravel, LLC Pearl River P16-020 Final 10%

 

SURFACE MINING PERMIT TRANSFERS

Chris Albritton Construction Co., Inc. to Connor Ethridge Lauderdale P10-032T
Tim Burton to Eutaw Construction Company, Inc. Tishomingo P09-012T

 Other Business

Roy Furrh, MDEQ Chief Counsel, asked that the public send any documentation directly to MDEQ staff rather than directly to him or the Permit Board members. Staff will then provide documentation to him and the Board members.  Krystal Rudolph with the Office of Pollution Control’s Environmental Permit Division added further that if comments are submitted directly to the Board members during a public comment period rather than to staff, then those comments are not included in the public record.

Mr. Furrh noted to the Board that appeals have been filed relating to the evidentiary hearings for both Gold Coast Commodities, Inc. and Mississippi State Port Authority Water Quality Certification.

Mr. Furrh reminded the Board that new officer elections will be held at the June 8, 2021 Board meeting. It is customary that officers rotated among the different state departments which the Board members represent.  He further went to say that Les Herrington is currently in the rotation to become Chair for this coming election.  He thanked outgoing Board Chair Jennifer Whitman for her service for this last year. New officers will take office effective as of the July meeting to coincide with the State of Mississippi’s fiscal year.

The next Permit Board meeting will be held on June 8, 2021, at 9 a.m.

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

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

 

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