Recent Legislative Updates

September 2018

Progressive Wave Shakes Up Massachusetts Primary Season

Throughout Massachusetts, a number of Congressional, legislative and county officials faced primary challenges from within their own party. With the September 4 primary now completed, it appears that the Commonwealth will continue to make history in November.

In one of the most widely watched races, Congressman Mike Capuano, a long-time supporter of all things infrastructure, was defeated by Boston City Councilor Ayanna Pressley. Councilor Pressley, who was largely discounted by the Democratic establishment, rode a wave of progressive activism in unseating the 10-term Congressman. Congressman Capuano, gracious in defeat, her victory reflected voters’ desire for change from the current political climate.

Showing how active the City of Boston proved to be, House Ways and Means Chairman Jeff Sanchez, a long-time supporter of water infrastructure, was defeated by Ms. Nika Elugardo, a progressive Jamaica Plain Democrat. Chairman Sanchez, who sponsored the amendment creating the Water Infrastructure Finance Commission earlier in his tenure, had been supportive of initiatives to improve infrastructure throughout the Commonwealth. House Assistant Majority Leader Byron Rushing, saw defeat in the form of emergency room physician, Dr. Jon Santiago, who once worked for Representative Rushing. Leader Rushing, who led the fight for expanded civil rights on behalf of many Massachusetts residents, had seen a resurgence of political power after his own run for Speaker of the House against former Speaker of the House Tom Finneran more than a decade ago.

In the quest for the state’s “Corner Office”, Governor Charlie Baker easily won the Republican primary while former Patrick Administration official, Jay Gonzalez, won the Democratic nod. The closely watched fight for the state’s top election and public records officer saw Democratic Secretary of State Bill Galvin overcome a spirited challenge from Boston City Councilor Josh Zakim. On the Republican side of the US Senate race, Representative Geoff Diehl won the right to challenge United State Senator Elizabeth Warren. Congressman Stephen Lynch fought off a challenge while Congressman Richard Neal did the same in Western Massachusetts.

Representatives Dan Cullinane, Denise Garlick, Sean Garballey, Angelo Scaccia, and Rady Mom survived intra-party challenges. On the Senate side, Senators Jason Lewis and Jim Welch also overcame “progressive” candidates who attempted to distinguish themselves from the incumbents – despite having nearly identical political positions. Representative Robert Koczera, a long-time legislator from the New Bedford area, lost in his Democratic primary.

The general election will be held Tuesday, November 6.

DPH Study Finds Opioid Epidemic Hitting Construction Industry Harder Than Most Other Industries in Massachusetts

A report released in August by the Massachusetts Department of Public Health (“DPH”) on state opioid deaths by occupation and industry during the years 2011 through 2015 has revealed that construction and extraction (i.e., mining, quarrying, oil and gas extraction) workers had six times the opioid-related death rate as workers in other industries. Of all opioid-related deaths in the construction and mining category, construction occupations represented 97%.

The report comes as Massachusetts is currently experiencing an epidemic of opioid-related overdoses and deaths. The estimated number of opioid-related overdose deaths in the state more than doubled from 2011 to 2015, and the rate of opioid-related overdose death is higher than the average for the Nation. According to the DPH report, efforts to end this epidemic require an understanding of the populations that are being most affected by it. The report, which categorized opioid-related overdose deaths among Massachusetts’ residents from 2011 to 2015 by industry and occupation of the deceased, overall, and by demographic characteristics (gender, race/ethnicity, age), also explores factors that may contribute to differences in the rate of opioid-related overdose death among workers in different industries and occupations. Findings from this report will be used to target interventions within industries and occupations that are impacted most by the epidemic and to help identify strategies to address workplace and socioeconomic factors that may be contributing to the epidemic.

In particular, DPH’s study, which used state death certificates to develop a snapshot of the addiction epidemic, found that opioids accounted for approximately 1,096 overdose fatalities in the construction and extraction industry, or 150 deaths per 100,000 workers. The average rate for all workers in Massachusetts was 25 per 100,000 workers. Other construction-related occupations like material moving (59); installation, maintenance, and repair (54); and building and grounds cleaning and maintenance (38) also had higher-than-average opioid death rates.

The DPH study also found that the number of fatal opioid overdoses is greater in those occupations that have high rates of workplace injuries and illnesses – potentially leading to the conclusion that some cases of prescribed opioids contributed to fatal overdoses. The rate of opioid-related deaths was also higher among those with limited paid sick leave and lower job security. In addition to evaluating how opioids are prescribed and managed, the report also suggests that employers focus on preventing the injuries for which opioids are prescribed.

To review the Department’s opioid report, please visit:

https://d279m997dpfwgl.cloudfront.net/wp/2018/08/opioid-industry-occupation-report.pdf

Attorney General Healey Issued Her Annual Labor Day Report

Massachusetts Attorney General Maura Healey issued her third annual Labor Day Report on the office’s efforts to combat wage theft and other forms of worker exploitation. According to a press release from the Attorney General’s Office (“AGO”), the report shows that in fiscal year 2018, the office assessed more than $9.6 million in restitution and penalties against employers on behalf of working people in Massachusetts.

The Labor Day Report details the activities of the Attorney General’s Fair Labor Division in fiscal year 2018 (July 1, 2017 to June 30, 2018). The Division, which is responsible for enforcing state laws regulating the payment of wages, including prevailing wage, minimum wage, earned sick leave and overtime, is the lead entity for wage enforcement. In fiscal year 2018, the Fair Labor Division opened 729 cases and required employers to pay $6.8 million in restitution and $2.7 million in penalties. The construction and hospitality industries continued to have the highest percentage of violations cited. The AGO issued citations against 61 employers in the construction industry and assessed nearly $1.5 million in restitution and penalties in fiscal year 2018.

In terms of employees, more than 4,000 employees received restitution as a direct result of the AGO’s actions. The Fair Labor Division answered more than 15,000 calls from members of the public and processed more than 5,700 wage and hour complaints in fiscal year 2018. Also this fiscal year, investigators from the Fair Labor Division conducted 247 compliance and site visits to jobsites and businesses in nearly 100 cities and towns throughout Massachusetts.

To increase resources available to victims of wage theft, the AGO has continued to partner with legal aid providers, law schools, and private bar attorneys to offer free monthly wage theft clinics in Boston. More than 250 workers have attended clinics in Boston, New Bedford, and Springfield, where they were able to meet with attorneys and advocates free of charge to receive assistance on a range of employment issues. With assistance from clinic partners, workers reported recoveries of more than $166,000 in fiscal year 2018 in restitution.

The AGO’s Labor Day Report is noteworthy within the context of the ongoing legislative debate over wage theft. Proponents for creating vicarious liability for wage theft by employers have long asserted that the current laws are insufficient for addressing the issue. Opponents of the measure have continually cited the fact that, as the AGO report demonstrates, the current wage theft laws do work. Expect this issue to return in the 2019-2020 legislative session.

MassDEP Issues New Type of Watershed Permit on Cape Cod

According to a press release from the agency, the Massachusetts Department of Environmental Protection (MassDEP) recently issued a first-of-its-kind “Watershed Permit” to the four towns sharing the Pleasant Bay watershed, Brewster, Chatham, Harwich and Orleans. The permit represents an innovative and flexible permitting approach to support Cape Cod communities’ efforts to address the critical water quality challenges stemming from nitrogen contamination of the Cape’s waterways.

With an increase in development and population over the past several decades on Cape Cod, increasing amounts of nitrogen – primarily from septic systems – have been discharged into the Cape’s waterways, polluting local bays and estuaries. To address these challenges, in 2015 Governor Baker certified a plan developed by the Cape Cod Commission aimed at both addressing Cape Cod water quality issues, and restoring those waters to levels where they are able to meet state water quality standards. The plan, known as the “208 Plan,” emphasizes local decision-making to determine the best, most cost-effective solutions rather than those that could otherwise be imposed on communities by the state and federal governments. The plan encourages communities to share treatment systems to reduce costs, and supports innovation and natural solutions where possible. In certifying the plan, Governor Baker directed the MassDEP to develop a watershed-based permitting program to provide communities flexibility in their efforts to address water quality issues in their watersheds.

As reported by the MassDEP, the four towns sharing Pleasant Bay have, through the Pleasant Bay Alliance, been coordinating actions to address the nitrogen contamination for close to two decades. The Alliance and member towns agreed to participate in a Watershed Permit Pilot Project to evaluate the requirements and benefits of this new approach. The new permit, developed with the assistance of the U.S. Environmental Protection Agency (EPA) and the Cape Cod Commission, provides a permitting structure that transcends municipal boundaries and focuses on nitrogen management solutions across an entire watershed.

As developed and implemented, the new watershed permit will:

•Provide the permitted communities with an opportunity to employ not just traditional wastewater systems, but also alternative approaches, such as fertilizer reduction, inlet restoration, aquaculture or permeable reactive barriers;
•Allow the permitted communities to get credit for the nitrogen reductions stemming from non-traditional approaches and/or non-traditional technologies;
•Account for the need to implement long-term strategies through a 20-year permit instead of the traditional five-year permits; and
•Employ an adaptive management approach while carefully monitoring performance and assessing progress.

The MassDEP expects that the Pleasant Bay Watershed Permit Pilot will serve as a model for other communities on Cape Cod as they move forward to develop and implement solutions to their water quality challenges.

News in Brief

•Statewide Environmental Group Changes Name. According to a press release by the organization, the Massachusetts Conservation Voters (“MCV”), a new organization has been formed to ensure the long-term viability of these critical places that play a major contribution to tourism, recreation, education and quality of life. MCV, formerly called the Massachusetts League of Environmental Voters, has created a new website (www.massconservationvoters.com), where MCV members and the public will be able to follow how MCV engages in its mission, give feedback on the group’s progress, and locate recreational opportunities across the state.

•Cape Bridge Work to Continue in Spring 2019. The New England District of the U.S. Army Corps of Engineers (“USACE”) and the Massachusetts Department of Transportation (“MassDOT”) recently announced that scheduled maintenance on the Bourne Bridge over the Cape Cod Canal is being shifted to the spring season next year. In addition, the USACE and MassDOT are announcing the signing of a memorandum of understanding to continue to facilitate ongoing conversations, a sharing of information and collaborative decision-making regarding the inspection of the Bourne and Sagamore Bridges, scheduled maintenance and future project development.

•Conservation Law Foundation Sues Over Non-Permitted Wastewater Discharges. Asserting that sewage discharges into leaching fields require federal Clean Air Act permits, the Conservation Law Foundation has filed federal lawsuits against a pair of Cape Cod resorts. The lawsuits, brought against the Wychmere Beach Club and the Wequassett Resort and Golf Club, argue that nitrogen discharges are fueling “noxious algae outbreaks” in Wychmere Harbor and Pleasant Bay. For their part, the resorts assert they are acting in compliance with federal and state law. This will be an interesting case to keep an eye on as the Cape Cod region continues to implement its Section 208 plan aimed at meeting the state’s water quality standards.