Prepared By Brunini, Grantham, Grower & Hewes, PLLC
The Environmental Practice Group of the Brunini Law Firm publishes a summary of the proceedings of each monthly meeting of the Mississippi Environmental Quality Permit Board and of the Mississippi Commission on Environmental Quality. We strive to provide, in a succinct newsletter format, the key points addressed in each meeting that will be of interest to the regulated community in Mississippi.
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The Mississippi Commission on Environmental Quality convened at 9:00 a.m. on April 28, 2016, at the offices of the Mississippi Department of Environmental Quality in Jackson. The Commission approved minutes from the previous meeting held on February 25, 2016. Following a prepared agenda, items considered were as follows:
Commission Approval of Environmental Covenant
The Commission approved the Environmental Covenant with the U.S. General Services regarding the remediation of property located adjacent to 3505 25th Avenue, Gulfport, Mississippi, referred to as the “USDA APHIS Laboratory (AI#69227).” The Site was the former Analytical and Natural Products Chemistry Lab (ANPCL), Center for Plant Science Health and Technology (CPHST). Environmental Site Assessments have revealed a release of hazardous substances impacting soils and groundwater, in excess of Target Remediation Goals (TRGs). Therefore, remediation of the site is necessary. The staff 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.
FY2017 Title V Fee Recommendation
The Commission approved MDEQ staff’s recommendation to set the FY2017 Title V permit fee at $47.00 per ton of regulated air pollutants with a minimum fee of $250.00. A public hearing concerning the fee was held on April 6, 2016. No comments were received.
Adoption of Amendments to 11 Mississippi Administrative Code, Part 2, Chapter 5, Regulations for the Prevention of Significant Deterioration of Air Quality and Associated Revision to the Mississippi State Implementation Plan for the Control of Air Pollution
The Commission approved staff’s recommendation to adopt the proposed regulation amendments and SIP Revision. The amendments to 11 Miss. Admin. Code, Pt. 2, Ch. 5, “Regulations for the Prevention of Significant Deterioration of Air Quality” and the associated Revision to the State Implementation Plan for Control of Air Pollution (SIP Revision) involve the adoption, by reference, of recent changes to federal rules in order to keep state regulations consistent with federal requirements. Specifically, the amendments will remove the portions of the Greenhouse Gas Tailoring Rule which was removed from the federal Prevention of Significant Deterioration of Air Quality (PSD) regulations on August 19, 2015. A public hearing was held on March 18, 2016 and no comments other than from EPA were received. EPA’s suggested changes were for clarity purposes and such changes were incorporated in the Amendment.
Stephanie Howard, Executrix of the Estate of Gerald Donald-Request for an Evidentiary Hearing
Hearing Officer Ricky Luke (Assistant Attorney with the Mississippi Attorney General’s Office and the Hearing Officer appointed by the Commission in this matter) presented his Findings and Recommendation for the Commission’s consideration. The Commission approved Hearing Officer’s recommendation that the oil company (“Defendants”) Motion to Lift Stay and Motion to Dismiss be granted.
A Motion to Lift Stay and Motion to Dismiss were filed by the oil company defendants in the referenced matter. Stephanie Howard, (“Petitioner”) owns property in Wayne County that she claims is contaminated with naturally occurring radioactive material related to a previous truck washing operation conducted on the site by Davis Brothers. Petitioner claims that Davis Brothers contracted with the oil company defendants who contaminated the site. Petitioner filed the current administrative action seeking a Commission ruling that the defendants were responsible for clean-up of her property because the Circuit Court of Wayne County required Petitioner to exhaust her administrative remedies through the Commission before Petitioner would be allowed to pursue her suit for damages in Circuit Court against the oil company defendants. Petitioner had also filed a lawsuit in federal court for damages related to the alleged contamination.
Petitioner failed to disclose her ownership of the property and the federal and state lawsuits as assets as required in a bankruptcy proceeding she previously filed with the U.S. Bankruptcy Court. Because Petitioner failed to disclose the property and the lawsuits as assets of her bankruptcy estate, the Bankruptcy Court ruled Petitioner was judicially estopped from pursuing her claims related to the alleged contamination of her property including the administrative claim now pending before the Commission.
The Bankruptcy Court denied Petitioner’s request to stay its decision pending her appeal of the Court’s decision to the U.S. District Court for the Southern District of Mississippi, Southern Division. The District Court affirmed the Bankruptcy Court’s decision and the Petitioner appealed that decision to the U.S. Court of Appeals, Fifth Circuit. Citing the Bankruptcy Court’s judicial estoppel finding, the U.S. District Court for the Southern District of Mississippi, Eastern Division, dismissed Petitioner’s separate federal lawsuit for damages with prejudice. Before the Bankruptcy Court entered its decision, Petitioner and the oil company defendants entered an Agreed Order with the Commission agreeing to stay this matter. (Agreed Order No. 6304 13, August 27, 2013).
The Commission had previously designated Assistant Attorney General Ricky Luke as a hearing officer in this matter. Mr. Luke conducted a hearing on the oil company defendants’ Motion to Lift Stay and Motion to Dismiss on December 9, 2015, and allowed extensive briefing on this matter. The Commission has previously been provided materials for review which included copies of the Commission Agreed Order to Stay, Motion to Lift, Motion to Dismiss, Response, Reply, the transcript for the hearing held before Hearing Officer Luke on December 9, 2015, other Briefing and the Hearing Officer’s Findings and Recommendation to the Commission.
Asbestos: 226 certifications
Lead Paint: 100 certifications
Underground Storage Tanks: 25 certifications
EMERGENCY CLEAN-UP EXPENSES APPROVED
Eleven (9) emergency clean-up expenditures occurred since the last report.
ADMINISTRATIVE ORDERS APPROVED
Seventeen (17) administrative orders were issued by the Executive Director and approved by the Commission since the last report. These include the following matters:
|Program Area||Number of Orders||Penalty Range|
|NPDES||3||$937.50 – $10,000|
|Construction Stormwater||2||$15,150 – $20,162|
|Solid Waste||2||$8,400 – $75,000|
|Wet Deck Log Spray General Permit||1||$15,000|
The Commission approved an Order adopting proposed amendments to MDEQ’s regulations for Water Quality Criteria for Intrastate, Interstate and Coastal Waters.
The Commission an Order increasing the exam fee for the wastewater certification examination to $45.
Other Business: Gary Rikard, MDEQ Executive Director, announced that the Legislature retained funding for the agency at current levels.
The next Commission meeting is scheduled for May 26, 2016 at 9 am.
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.
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