Brunini Law

Mississippi Environmental Quality Permit Board

by

Summary of Meeting Held July 14, 2020

The Mississippi Environmental Quality Permit Board (“Board”) convened at 9:00 a.m. on July 14, 2020.  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 June 9, 2020 and the non-controversial actions/ certifications completed by the staff since the June 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 Releases

Permittee County Permit Staff Recommendation
Hammet Gravel Company, Inc. Yazoo P05-029A 50% release

Surface Mining Transfer

Permittee County Permit
F&F Construction, Inc., to Gulf Breeze Construction, Inc. Harrison P07-035

Other Business

Roy Furrh, MDEQ Legal Counsel, informed the Board Members that an evidentiary hearing has been requested regarding the All South Construction Surface Mining Bond Release approved during the May Permit Board.  It is currently scheduled for November 10, 2020.  Mr. Furr reported that the Hearing Officer has not made a final decision regarding the Mississippi State Port Authority – North Port Property in Harrison County.

The next Permit Board meeting will be held on August 11, 2020, at 9 a.m.

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

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

Related Attorneys

Mississippi Commission on Environmental Quality

by

Summary of Meeting Held June 25, 2020

The Mississippi Commission on Environmental Quality (“MCEQ”) convened at 9:00 a.m. on June 25, 2020.  This meeting was held through a telephone conference call.  The public was invited to listen to the deliberations of the Commission on the conference phone line.  The Commission first approved minutes from the previous meeting held on May 28, 2020, 2020. Then, following a prepared agenda, the Commission considered items as follows:

Water Pollution Control Revolving Loan Fund (WPCRLF) Program Loan Interest Rate Reduction and Subsidy Eligibility Threshold Adjustment

The staff briefed the Commission on a planned reduction of the WPCRLF loan interest rates and adjustment of the subsidy eligibility thresholds for projects awarded in fiscal years FY-19, FY-20, and FY-21. These adjustments are intended 1) to help ease the economic impacts of the COVID-19 pandemic on communities needing to proceed with wastewater infrastructure projects, 2) to stimulate demand for WPCRLF loans due to the currently significant funds availability, and 3) to ensure that WPCRLF interest rates stay “below market rate” as required by federal and state law.

Certifications Approved since the last report 

Type Number
Asbestos Certifications 102 certifications
Lead Paint Certifications 31 certifications
Administrative Orders 24 Administrative Orders

The next Commission meeting will be held on August 27, 2020, 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.

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.

Related Attorneys

Mississippi Commission on Environmental Quality

by

Summary of Meeting Held May 28, 2020

The Mississippi Commission on Environmental Quality (“MCEQ”) convened at 9:00 a.m. on May 28, 2020.  This meeting was held through a telephone conference call.  The public was invited to listen to the deliberations of the Commission on the conference phone line.  The Commission first approved minutes from the previous meeting held on April 23, 2020. Then, following a prepared agenda, the Commission considered items as follows:

FY2021 Title V Fee Recommendation

MCEQ Staff reported that a virtual public hearing concerning the FY2021 Title V Permit Fee was held on April 9, 2020. No comments were received. Therefore, MCEQ Staff recommended that the Commission set the fee at the proposed rate of $47.00 per ton of regulated air pollutants, which is the same as the previous year’s fee.  The Commission approved MCEQ Staff’s recommendation.

Commission Approval of Brownfield Agreement Completion

MCEQ Staff reported that the Commission reached a Brownfield Agreement (#6624-16) on February 26, 2016, with Stark Alan, LLC for the remediation of the Sunsations property located at 335 Hwy 12 in Starkville, Ms. On April 14, 2020, and in accordance with Rule 2.1.7.B of Part 3, Chapter 2: Final Regulations Governing Brownfield Voluntary Cleanup and Redevelopment in Mississippi, Stark Alan, LLC sent a petition to the Commission to make a determination as to the completion of Brownfield Agreement and as to the issuance of a “no further action” letter by the Executive Director. The MCEQ Staff has reviewed the petition, has conducted the required inspection of the Brownfield Agreement Site, and recommended that the Commission issue an order in accordance with the Brownfield Regulations concluding that Stark Alan, LLC has completed Brownfield Agreement #6624-16. The Commission approved the Brownfield Agreement Completion and the issuance of the no further action letter.

Commission Approval of Brownfield Agreement Completion

MCEQ Staff reported that the Commission reached a Brownfield Agreement (#6181-12) on October 1, 2012 with The Colle Company for the remediation of the Former Colle Towing Company property located at 3802 Port River Road in Pascagoula, Jackson County, Mississippi. This Brownfield Agreement required the adherence to the MDEQ approved Correction Action Plan, dated April 4, 2012. With the recording of an Environmental Covenant on this property on April 21, 2020, and after reviewing the Corrective Action Plan-Construction Report, it has been determined that all requirements set forth within the Brownfield Agreement (#6181-12) have been completed. Therefore, the MCEQ Staff hereby recommended that the Commission issue an order in accordance with the Brownfield Regulations concluding that Brownfield Agreement (#6181-12) has been completed and that a “no further action” letter be issued by the Executive Director. The Commission approved the Brownfield Agreement Completion and the issuance of the no further action letter.

Commission Approval of Brownfield Consulting Firm

MCEQ Staff reported that they had reviewed an application from a consulting firm requesting to be listed as a Brownfield Consulting Firm and determined it to be complete and acceptable. Therefore, MCEQ Staff recommended and the Commission approved the following firm as Brownfield Consulting Firm:

Leeaf Environmental, LLC

2301 Whitney Ave

Gretna, LA 70056

Certifications Approved since the last report

Type Number
Asbestos Certifications 457 certifications
Lead Paint Certifications 160 certifications
Underground Storage Tanks (UST) Certifications 9 certifications to those who install, alter, or remove underground storage tanks
Wastewater Operator Certifications 10
Emergency Clean-Up Expenses 6

Administrative Orders

Administrative Orders will be reflected on next month’s Commission meeting agenda.

The next Commission meeting will be held on June 25, 2020, 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.

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.

Related Attorneys

BRUNINI WELCOMES MAGGIE K. DUFF

by

Maggie Duff has joined Brunini, Grantham, Grower & Hewes in August of 2020 as an associate in the firm’s civil litigation department. Her practice focuses primarily in commercial litigation, personal injury and mass tort liability and labor and employment.

Maggie received her Juris Doctor from the University of Mississippi School of Law in 2020. Prior to attending law school, she received her Bachelor of Arts in Communications with an emphasis in Public Relation at Mississippi State University in 2016.

In law school, Maggie served as a Senior Articles Editor of the Mississippi Sports Law Review. Maggie was also a member of the Business Law Network and Student Bar Association. Maggie has volunteered for federal and local campaigns and also served in U.S. Congressman Steven Palazzo’s office in Washington, D.C. Maggie was a member of the Stennis Program for Congressional Interns nominated by Congressman’s Palazzo’s office. Additionally, during her time in law school, Maggie was a legal intern for the Mississippi Attorney General’s Office.

Sam Kelly, Managing Partner of the Brunini firm said, “We are excited to welcome Maggie to the Firm and are confident that she will be a wonderful asset to our team.”

Related Attorneys

A CIRCUIT SPLIT ON TITLE V PERMITS UNDER THE CLEAN AIR ACT

by

A split has formed between the United States Courts of Appeals for the Fifth and Tenth Circuits over requirements applicable to obtaining Title V permits pursuant to the Clean Air Act, 42 U.S.C. § 7401 et seq. (“the Act”). See Environmental Integrity Project v. EPA, —F.3d—, 2020 WL 4686995 (5th Cir. Aug. 13, 2020); Sierra Club v. EPA, 964 F.3d 882 (10th Cir. 2020).

The foundation for the disputes in both cases was the propriety of the past issuance of preconstruction permits, i.e., New Source Review (“NSR”) permits, which are issued pursuant to Title 1 of the Act. NSR permits must be obtained before building a new facility or modifying an old one, and they are issued by states through vehicles called “state implementation plans” (“SIPs”). A state must provide notice and an opportunity to comment before a preconstruction permit is granted. See 40 C.F.R. § 51.161(a).

The requirements of a NSR permit differ substantially depending upon whether the new source is deemed a “major source” or “minor source.” If “major,” then the review for a NSR permit and the requirements that must be met are detailed and difficult. If “minor,” then the bar is considerably lower. As a result, this designation is important to interested parties.

This is where Title V becomes important. Title V permits were added to the Act in 1990, well after the introduction of NSR permits in 1977. The purpose of Title V permits is to provide each source with a single permit that contains and consolidates all information needed to comply with the Act without imposing new substantive requirements, and they must be renewed every five years.

The permit must contain:

“enforceable emission limitations and standards, a schedule of compliance, a requirement that the permittee submit to the permitting authority, no less often than every 6 months, the results of any required monitoring, and such other conditions as are necessary to assure compliance with applicable requirements of this chapter, including the requirements of the applicable implementation plan.”

§ 7661c(a) (emphasis added).

The split concerns the meaning of “applicable requirements” when a Title V permit or renewal is sought after, sometimes even years after, having obtained a Title 1 permit. How are the Title 1 requirements incorporated into the Title V permit?

One interpretation is that “applicable requirements” means a Title V permit must incorporate all of the requirements in the previously granted Title 1 permit, but nothing more. Another is that it must include all of the requirements of the SIP, and not simply the requirements contained in the permit, and this means it includes the requirements for major NSR. See 42 U.S.C. §§ 7410(a)(2)(c), 7471, 7502(c)(5).

The difference in this interpretation is enormous. Under the former, a court only determines whether the Title V permit incorporates the requirements contained in the Title I permit as issued. Under the latter, a court can second-guess the issuance of the type of preconstruction permit, i.e., major or minor, at a later point in time.

The difficulty faced by the Fifth and Tenth Circuits is that § 7661c(a) does not define “applicable requirements.” The Tenth Circuit resolved this issue by looking to the definition of this term in 40 C.F.R. § 70.2, the regulation that implements § 7661c(a). Section 70.2 provides, in relevant part:

“Applicable requirement means all of the following as they apply to emissions units in a part 70 source…

(1) Any standard or other requirement provided for in the applicable implementation plan approved or promulgated by EPA through rulemaking under title I of the Act that implements the relevant requirements of the Act, including any revisions to that plan promulgated in part 52 of this chapter”

The Tenth Circuit reasoned “the applicable implementation plan” includes SIPs, and SIPs require major NSR.

The Fifth Circuit, by contrast, discussed (among other factors) the lack of a definition provided in the statute, legal authority indicating Title V does not impose new substantive requirements, and the EPA’s view before enacting § 70.2 that “the intent of [T]itle V is not to second-guess the results of any State’s NSR program.” Environmental Integrity Project, 2020 WL 4686995 at *3. It recognized that preconstruction permits are already subject to a notice and comment period and approval by the EPA, and adopting the petitioner’s view (the view adopted by the Tenth Circuit) could “make Title V a vehicle for the public to (again) challenge preconstruction permits” because it makes possible re-examining the substantive validity of underlying Title I preconstruction permits. Id. at 10. To private and other interested parties, this injects uncertainty in the permitting process because there is, resultantly, no finality to a permitting decision. A preconstruction permit issued in Year 1 could be re-litigated in Year 15 upon renewal of a Title V permit.

The Fifth Circuit decision is binding in Louisiana, Mississippi, and Texas, while the Tenth Circuit’s is binding in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. It is possible the split will not be resolved until the United States Supreme Court addresses the issue. However, because the Fifth Circuit rested its decision on the EPA’s interpretation of a statute, i.e., § 7661c(a), and the Tenth Circuit rested its decision on the EPA’s interpretation of a regulation, i.e., § 70.2, it is also possible the Fifth Circuit could revisit the issue and reframe its approach if future arguments raised before the court focus more closely on the EPA’s interpretation of § 70.2. Foundation for this suggestion can be seen in footnote 6 of the Fifth Circuit’s opinion.

Mississippi Environmental Quality Permit Board

by

Summary of Meeting Held May 12, 2020

The Mississippi Environmental Quality Permit Board (“Board”) convened at 9:00 a.m. on May 12, 2020.  This meeting was held through a telephone and Zoom 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 April 14, 2020 and the non-controversial actions/ certifications completed by the staff since the March 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 Application

Permittee County Permit
Baker Ready Mix & Construction, LLC Winston A2038

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

Surface Mining Bond Releases

Permittee County Permit Staff Recommendation
J. J FERGUNSON SAND & GRAVEL CARROLL P98-027 No Release
JOE MCGEE CONSTRUCTION CO RANKIN P14-021 Final 10%
JOE MCGEE CONSTRUCTION CO RANKIN P15-001 Final 10%
MAGCO, INC JASPER P13-007 No Release
ODDEE SMITH CONSTRIUCTION, INC LINCOLN P02-066AAA Initial 35%
W.S. JORDAN & SONS SAND & GRAVEL, INC DESOTO P87-005 Initial 90%
W.S. JORDAN & SONS SAND & GRAVEL, INC DESOTO P92-001 Final 60%
W.S. JORDAN & SONS SAND & GRAVEL, INC DESOTO P96-026 Final 20%
W.S. JORDAN & SONS SAND & GRAVEL, INC DESOTO P99-045 Initial 90%
ALL SOUTH CONSTRUCTION NESHOBA P99-071A Final 80%

OFFICE OF POLLUTION CONTROL

WASTE DIVISION – SOLID WASTE PERMITTING BRANCH

 Quad County Environmental Solutions, LLC (Quad County Landfill), Marshall County, Modification of Solid Waste Mgmt. Permit SW0470010580

 MDEQ staff presented to the Board and recommended approval the above-referenced Application.  Staff described the Quad County Landfill projects and discussed the dates of various public notices and hearings, reporting that the no public comments were received at the hearing.  After answering some brief questions from the Board, MDEQ staff recommended issuance of the Permit and the Board approved.

Other Business

Roy Furrh, MDEQ Legal Counsel, informed the Board members that the evidentiary hearing regarding Mississippi State Port Authority – North Port Property in Harrison County, scheduled for May 12, 2020, has been postponed and will be rescheduled.

Mr. Furrh also reminded the Permit Board officer elections will be held during the June meeting.

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

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

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

Related Attorneys

Mississippi Commission on Environmental Quality

by

Summary of Meeting Held April 23, 2020

The Mississippi Commission on Environmental Quality (“MCEQ”) convened at 9:00 a.m. on April 23, 2020.  This meeting was held through a telephone conference call.  The public was invited to listen to the deliberations of the Commission on the conference phone line.  The Commission first approved minutes from the previous meeting held on February 27. 2020. Then, following a prepared agenda, the Commission considered items as follows:

FY 2021 Underground Storage Tank Fee Recommendation

A public comment period concerning the FY2021 Underground Storage Tank (UST) Fee was held between February 12 through March 12, 2020 with the public notice information distributed to the Mississippi Petroleum Marketers and Convenience Store Association. No comments were received. Staff recommended and the Commission approved to set the fee at the proposed rate of $150.00 per UST, which is an increase of $50 from last year’s tank fee. The tank fee has been set at $100 per UST since 1998.

Environmental Covenant for Southland Oil Yazoo Bulk Plant

Pursuant to the Commission’s delegation regulations (11 Miss. Admin. Code Pt. 1, R.1.1.Y.), the Interim Executive Director of MDEQ approved the Environmental Covenants between the Commission and Comet Street, LLC regarding the remediation of a former bulk plant located at 1184 Rialto Road in Yazoo City, Mississippi. The site operated as a bulk storage plant for diesel fuel and gasoline. Site assessments have revealed release(s) of diesel fuel and gasoline contaminating soils and groundwater at concentrations in excess of Target Remediation Goals. Remedial actions included the installation of a dual phase extraction system in 2006 and soil excavation in 2013. The staff of the MDEQ has evaluated the proposed Environmental Covenant and believes that, with the conditions and restrictions contained within; the site will be in compliance with applicable State laws and standards and will be protective of the public health and the environment. This agenda item is for reporting purposes only.

The next Commission meeting will be held on May 28, 2020, at 9 a.m.

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

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

Related Attorneys

Mississippi Environmental Quality Permit Board

by

Summary of Meeting Held April 14, 2020

The Mississippi Environmental Quality Permit Board (“Board”) convened at 9:00 a.m. on April 14, 2020.  This meeting was held through a telephone conference call.  The public was invited to listen to the deliberations of the Board on the conference phone line.  The Board first approved minutes from the previous meeting held on March 10, 2020 and the non-controversial actions/ certifications completed by the staff since the March meeting. Then, following a prepared agenda, the Board considered items as follows:

OFFICE OF GEOLOGY

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

Surface Mining Bond Releases

Permittee County Permit Staff Recommendation
Eutaw Construction Company Panola P16-016 Additional 15%
Eutaw Construction Company Oktibbeha P16-004 Final 50%
James Construction Group Hinds P14-005A No Release
Joe McGee Construction Co. Tallahatchie P16-029A Initial 70%
Wet Mine Assets Holding, LLC Hancock P04-008AT Initial 50%

Other Business

Roy Furrh, MDEQ Legal Counsel, informed the Board Members that the evidentiary hearing regarding Mississippi State Port Authority – North Port Property in Harrison County, scheduled for May 12, 2020, has been postponed and will be rescheduled. Steve Ray will be the hearing officer.

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

Mr. Furrh also discussed the upcoming May 12, 2020 Board meeting and stated that there are agenda items for which they expect persons to oppose Permit Board approval for these items.  Mr. Furrh stated that holding the meeting via Zoom or WebEx is being considered in order to allow all interested persons to address the Board in an easier manner. MDEQ will announce the meeting format at a later date.

The next Permit Board meeting will be held on May 12, 2020, at 9 a.m.

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

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

Related Attorneys

U.S. Department of Labor Provides Additional Guidance on Employers’ OSHA Recordkeeping Responsibilities During COVID-19

by

During the COVID-19 pandemic, employers have been forced to address the application of virtually every legal labor and employment obligation in the context of the pandemic.  One of these obligations includes an employer’s responsibilities under the federal Occupational Safety and Health Act (OSHA), which is administered by the U.S. Department of Labor (DOL).  The DOL previously published its Guidance on Preparing Workplaces for COVID-19, in which it outlined steps for employers to protect their employees.

On April 10, 2020, the DOL issued additional guidance addressing the agency’s enforcement of OSHA’s recordkeeping requirements amid the COVID-19 pandemic.  Generally, OSHA recordkeeping requirements command “covered employers” to record certain work-related injuries and illnesses on their OSHA 300 log. However, since the on-set of this pandemic, employers have wrestled with whether they are required to record an employee’s COVID-19 illness—and if so, when.

According to the DOL, COVID-19 is “recordable” and must be included on an employer’s OSHA 300 log, if:

  • The case is a confirmed case of COVID-19, as defined by Centers for Disease Control and Prevention (CDC);
  • The case is “work-related,” (as defined by 29 CFR § 1904.5); and
  • The case involves one or more of the general recording criteria, (as outlined by OSHA and set forth in 29 CFR §1904.7). Per OSHA, cases meet this recording criteria if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond “first aid,” or loss of consciousness.

In the same guidance, the DOL expressly stated that it will not require covered employers to make a determination regarding “work-relatedness” (Step # 2 above), except where:

  • There is objective evidence that a COVID-19 case may be work-related; and
  • The evidence was reasonably available to the employers.

The DOL expressly states that this limited recordkeeping waiver does not apply to employers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting and law enforcement services), and correctional institutions.

The DOL’s stated goal of this limited enforcement is to “help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects, rather than on making difficult work-relatedness decisions in circumstances where there is community transmission.”

Related Attorneys