Recent Legislative Updates

November 2017

UCANE and Auditor Bump Announce Conditional Support for Primacy Legislation

The Joint Committee on the Environment, Natural Resources and Agriculture held a public hearing in mid-October on House Bill 2777, An Act Relative to the Administration of the National Pollutant Discharge Elimination System (NPDES) Program. The legislation, which will allow the MassDEP to enforce the federal drinking water and clean water permitting process, is a priority of the Baker-Polito Administration as well as the Massachusetts Municipal Association.

In particular, the legislation will allow the Massachusetts Department of Environmental Protection (DEP) to begin the process for assuming control over the implementation of the NPDES from the EPA. In particular, the EPA requires submission of a letter from the Governor requesting review and approval; a Memorandum of Agreement (MOA); a program description; a statement of its legal authority, and the federally compliant state laws and regulations. This legislation provides the necessary authority to the DEP while bringing our water quality laws in line with the federal requirements. The Baker-Polito Administration will be able to apply to the EPA for approval under this program once this legislation is passed.

In offering testimony in support of the legislation, UCANE praised the DEP’s work to date, but also expressed caution that advancing this legislation will require a commitment from all involved parties.

In its testimony, UCANE stated, in part:

“While concern has been raised by some as to whether the DEP can administer this federal program, UCANE has seen firsthand the DEP’s success in managing and directing the state’s Drinking Water and Clean Water State Revolving Funds (CWSRF/DWSRF). As a result of DEP’s work with the Clean Water Trust, municipalities and regional water authorities have access to technical expertise and funding to address their drinking water and sewer system needs. There are few programs in the nation that match the Commonwealth’s success in administering and managing this federal-state partnership. With the additional financial commitment made by the Baker-Polito Administration, the DEP will have the financial resources to operate the NPDES program as efficiently and effectively as the CWSRF/DWSRF program.
Please note, however, if the financial resources needed for DEP to operate the NPDES program are taken from existing DEP or Executive Office of Energy and Environmental Affairs appropriations, it is more than likely that the agency will not be able to successfully manage this program. As has been stated by the Administration and others thus far, separate and distinct funding must be made available to the DEP for the purpose of managing the NPDES program.”

UCANE found itself inline with a prominent government watchdog with this position. According to a press release issued by her office, Auditor Suzanne M. Bump weighed in with the Joint Committee on Environment, Natural Resources and Agriculture, as well to express her qualified support for the legislation.
In her testimony, Auditor Bump noted that taking this step will simplify the regulatory framework for cities and towns, stating, “This will allow municipal leaders to more effectively work with regulators to develop mutually agreed-upon capital plans that help get the most out of every dollar spent across all types of water infrastructure.”

However, Bump calls for two critical changes to the funding amount and mechanism in the bill. In that, the Auditor calls for funding for the program to come from not only the Commonwealth’s General Fund, but also a user fee, and a fee paid by major point industrial and commercial sources. Given her earlier study on water infrastructure needs, she believes these revenue streams should be used to augment the state’s line-item contribution. “Diversifying these funding sources will provide greater funding consistency, support long-term planning, and insulate this critical function from state budgetary challenges that may arise in the future,” she wrote in her testimony.

In January, Bump released a study that examined the municipal water infrastructure needs in the Commonwealth. In this study, the Auditor calls for the state administration of the NPDES program. Her office’s analysis also found a total municipal water infrastructure spending need in excess of $17.8 billion over the next two decades.

Bump’s written testimony is available here.

Baker Administration Teams with Treasurer Goldberg to Announce Water Testing Program for Lead for 2017-2018 School year

In a continued effort to ensure safe drinking water in schools across the Commonwealth, the MassDEP and Treasurer Deb Goldberg launched the 2017-2018 Lead in School Drinking Water Assistance Program, seeking to again help more public schools and day care centers test for lead and copper in their school drinking water. The 2016-2017 program was completed last spring after thousands of taps and drinking water fountains in more than 800 school facilities were tested.

According to a press release from the MassDEP, the testing program was funded last year with $2.75 million made available by the Baker-Polito Administration and State Treasurer Deborah Goldberg through the Massachusetts Clean Water Trust. Approximately $600,000 of that funding remains and will be utilized to help more schools perform testing this school year.

The program is designed to encourage more schools to perform lead and copper testing with the help of experts at the MassDEP. Under current federal laws, testing in schools is voluntary and this program is designed to help schools implement effective testing programs and take water samples, and to educate them about how to address elevated levels.

Elevated lead and copper was detected in less than 10 percent of the drinking water taps and water fountains tested last year. School officials were encouraged to shut off those water fixtures as they determined appropriate next steps, and to communicate the results along with short-term action plans to parents and staff. Among the actions taken by schools were to remove and replace fixtures, use signage to indicate fixtures not intended to be used for drinking water, and the implementation of water line flushing programs.

Nearly 56,000 water samples were collected from approximately 32,000 water faucets, drinking fountains and other fixtures within public schools. Water supplied to schools is generally free of lead, but lead can be introduced into drinking water through plumbing and fixtures in buildings – especially in facilities more than 20 years old. Copper can also enter drinking water through plumbing, so the assistance program will also address copper levels in drinking water.

To its credit, the Massachusetts Water Resources Authority (MWRA) is providing lab analysis and supplemental technical assistance at no charge to the school systems located in communities served by the MWRA. The University of Massachusetts-Amherst will also be providing technical assistance to all school systems participating in the program. The Massachusetts Department of Public Health’s Bureau of Environmental Health supports the assistance program by developing educational materials and by assisting school departments with how to communicate test results to school communities. Additionally, the Department of Elementary and Secondary Education (ESE) and the Department of Early Education and Childcare (EEC) are assisting with program outreach to public schools across the Commonwealth.

The Massachusetts Clean Water Trust lends financial assistance to the Commonwealth under the State Revolving Fund program by providing subsidized loans to cities and towns for clean water and drinking water infrastructure development. Since its establishment in 1989, the Trust has loaned approximately $6.6 billion to improve and maintain the quality of water in the Commonwealth.

House and Senate Pass OSHA Adherence Legislation Governing Municipalities and Independent Authorities

The Massachusetts House of Representative and the Massachusetts Senate recently passed legislations relative to extending the protections of the federal Occupational Safety and Health Act (OSHA) to municipal employees. The legislation, Senate Bill 2167 / House Bill 3952, Acts Further Defining Standards of Employee Safety, updates Massachusetts’ antiquated public sector safety laws, which had not clearly defined what measures public agencies, such as the Massachusetts Department of Labor Standards, should employ to keep workers safe. The legislation would require that municipal public workers in the state have the same OSHA safety standards that cover all private sector and Commonwealth workers. If the House and Senate can resolve the minor differences between their versions, Massachusetts will join 26 other states that provide at least OSHA level protections for all public employees.

According to the Massachusetts Coalition for Occupational Safety & Health (MassCOSH), groups supporting the measure include the Massachusetts AFL-CIO, National Association of Government Employees – Service Employees International Union (NAGE-SEIU), Massachusetts Organization of State Engineers and Scientists (MOSES), American Federation of State, County and Municipal Employees Council 93, Service Employees International Union 888, Service Employees International Union 509, Massachusetts Teachers Association, Massachusetts Nurses Association, and Teamsters Local 25.

Under current law, Mass. Gen. Laws ch. 149; §6 authorizes the Massachusetts Department of Labor Standards (DLS) to respond to complaints, and investigate injuries and deaths. While DLS encourages municipal and independent agencies to comply with OSHA regulations as a minimum standard of employee protection, the current state law does not directly cite OSHA regulations as the minimum safety standard for city, town, higher education, and independent authority workers.

Last session, the Massachusetts legislature passed a law that extended OSHA protections to 36,000 executive branch workers. According to Liberty Mutual’s Research Institute for Safety, employers save $4 to $6 for every dollar spent on a health and safety program. Furthermore, the federal government has a grant program that matches state dollars one-to-one to fund the technical assistance and enforcement of public employee safety programs. It has been asserted that the Commonwealth will be eligible for these federal funds once the municipal and independent agency OSHA law is signed.

News in Brief

– Anderson Named Insurance Commissioner. At the end of October, Governor Charlie Baker appointed Gary D. Anderson to Commissioner of the Massachusetts Division of Insurance, a regulatory agency under the Office of Consumer Affairs and Business Regulation. Mr. Anderson joined the Division in 2014 as First Deputy Commissioner and has served as the Acting Commissioner since February 2017, where he is responsible for overseeing and monitoring an approximately $53 billion industry with over 1,600 licensed insurance companies and approximately 126,000 insurance agents licensed to do business in Massachusetts. As Policy Advisor and Senior Counsel in the Massachusetts State Senate President’s Office, Commissioner Anderson worked on Chapter 259 of the Acts of 2014, the comprehensive water infrastructure legislation.

– Feeney Sworn In As Senator. Senator Paul Feeney, who worked previously as legislative director of the International Brotherhood of Electrical Workers, Local 2222, and also as former Senator Jim Timilty’s first chief of staff, was sworn into office on the first day of November. Previously a member of the Foxborough Board of Selectmen, Senator Feeney was appointed as the Senate Chairman of the Joint Committee on Public Service shortly after his swearing in. A former Massachusetts State Director for United States Senator Bernie Sanders presidential bid, Senator Feeney is a pro-labor, progressive Democrat.

– HWM Budget Director Shuffle. House Ways and Means Budget Director Justin Sterritt recently accepted the position of Director of the Budget Office within the City of Boston. Replacing Mr. Sterritt will be the Honorable David Bunker, the former State Representative who previously served as the Chief Financial Officer for the Massachusetts Department of Education. Mr. Bunker, who returned to the State House at the end of October, previously worked with the House Committee on Ways and Means under former House Chairman John Rogers.

– Treasurer’s Legislative Director Named New Executive Director of Cannabis Control Commission. Mr. Shawn Collins, formerly Chief of Staff and General Counsel to former Senator Richard Moore and most recently Assistant Treasurer for Policy in the Office of the Treasurer, was recently named the Executive Director of the state’s new Cannabis Control Commission. Mr. Collins was the Treasurer’s point person on legislation, including matters impacting water infrastructure and the funding of such infrastructure through the Clean Water Trust.

– Advocates Call for State to End Paying for Bottled Water. The Massachusetts legislature’s Joint Committee on State Administration recently heard legislation, HB 3451, proposing to ban the Commonwealth from purchasing bottled water where an available public water supply existed. The legislation, sponsored by Representative Chris Walsh, was filed to reduce the use of plastic bottles and encourage the use of public water supplies. The Commonwealth spent approximately $1 million dollars on bottled water in fiscal year 2017. The legislation, which received a favorable report from the same committee last session, has never progressed past the House Committee on Ways and Means.