Outside Sections 27 - 56
Statewide Emergency Response and Mitigation of Hazardous Materials
Section 27. The General Laws are hereby amended by inserting after chapter 21J the following chapter:-
Chapter 21K. Section 1. As used in this section the following words shall have, unless the context clearly requires otherwise, the following meanings:-
"Act of God", an unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight. A natural disaster is unanticipated when it is of a type unexpected given the area, the season, and the past history of conditions.
"Department", the department of fire services.
"Division of hazardous material response", a division within the department of fire services.
"Emergency mitigation response", those actions taken by the hazardous materials mitigation emergency response team due to the release or threatened release of hazardous materials, which the department reasonably believes poses an imminent threat to the life, health, or safety of the public.
"Fiduciary", a person (a) who is acting in any of the following capacities: an executor or administrator as defined in section 1 of chapter 197, including a voluntary executor or a voluntary administrator; a guardian; a conservator; a trustee under a will or inter vivos instrument creating a trust under which the trustee takes title to, or otherwise controls or manages, property for the purpose of protecting or conserving such property under the ordinary rules applied in the courts of the commonwealth; a court-appointed receiver; a trustee appointed in proceedings under federal bankruptcy laws; an assignee or a trustee acting under an assignment made for the benefit of creditors pursuant to sections 40 through 42 of chapter 203; or a trustee, pursuant to an indenture agreement or similar financing agreement, for debt securities, certificates of interest of participation in any such debt securities, or any successor thereto; and, (b) who holds legal title to, controls, or manages, directly or indirectly, any site or vessel as a fiduciary for purposes of administering an estate or trust of which such site or vessel is a part.
"Hazardous material", material including but not limited to, any material, in whatever form which, because of its quantity, concentration, chemical, corrosive, flammable, reactive, toxic, infectious, or radioactive characteristics, either separately or in combination with any substance or substances, constitutes a present or potential threat to human health, safety, welfare, or to the environment, when improperly stored, treated, transported, disposed of, used, or otherwise managed. The term shall include oil. The term shall also include but it is not limited to all those substances which are included under 42 USC §9601(14).
"Hazardous materials mitigation emergency response advisory board", the advisory board as defined in section 2.
"Hazardous materials mitigation emergency response plan", a contingency plan developed by the hazardous materials mitigation emergency advisory board to be followed by the hazardous materials mitigation emergency response team when responding to release or threat of release of hazardous materials which pose an imminent threat to the life, health, or safety of the public.
"Imminent threat", a threat which poses a significant risk of harm to the life, health, or safety of the public, if it were present or left unabated for even a short period of time.
"Incident commander", the local fire chief of the jurisdiction in which there has been a release or threat of release which requires a hazardous materials mitigation emergency response.
"Indicia of ownership primarily to protect a security interest", only those interests in real or personal property typically acquired and held as security or collateral for payment or performance of an obligation. Such interests shall include, without limitation, a mortgage, deed of trust, lien, security interest, assignment, pledge, or other right or encumbrance against real or personal property, including those security interests which have a contingent interest component, which are furnished by the owner thereof to assure repayment of a financial obligation, and contractual participation rights in such interests, provided that the contract conferring such rights confers no other interest in the site or vessel.
"Marshal", the state fire marshal.
"Oil", insoluble or partially soluble oils of any kind or origin or in any form including but not limited to crude or fuel oils, lube oil or sludge, asphalt, and soluble or partially soluble derivatives of mineral, animal or vegetable oils.
"Owner", or "operator", shall be as defined in section 2 of chapter 21E.
"Person", any agency or political subdivision of the federal government or the commonwealth, any state, public, or private corporation or authority, any interstate body, foreign nation, individual, trust, firm, joint stock company, partnership, association, or other entity, and any officer, employee, or agent of such person, and any group of persons.
"Public utility company", a public utility as defined in paragraph (j) of section 5 of chapter 21E.
"Release", any spilling, leaking, pumping, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment, but excluding: (a) emissions from the exhaust of an engine; (b) release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in 42 U.S.C. §2014, if such release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under 42 U.S.C. §2210; (c) the normal application of fertilizer; and (d) the application of pesticides consistent with their labeling.
"Secured lender", (a) a person who holds indicia of ownership in a site or vessel primarily to protect that person's security interest in said site or vessel; (b) two persons when one holds indicia of ownership in a site or vessel primarily to protect the other person's security interest in that site or vessel if the person holding the indicia of ownership is: (1) wholly owned by the person holding the security interest; (2) an affiliate of the person holding the security interest and both are wholly-owned, directly or indirectly, by the same person; and (3) persons who hold contractual participation rights in a security interest, and any of the following which hold indicia of ownership in a site or vessel primarily to protect that security interest: a wholly owned subsidiary of any such person; an affiliate of any such person if both are wholly-owned, directly or indirectly, by the same person; and any entity formed among such persons, subsidiaries, or affiliates.
"Site", any building, structure, installation, equipment, pipe or pipeline, including any pipe into a sewer or publicly-owned treatment works, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or any other place or area where oil or hazardous material has been deposited, stored, disposed of or placed, or otherwise come to be located, and which requires an emergency mitigation response. The term shall not include any consumer product in consumer use or any vessel.
"Team leader", an individual vested with the authority to oversee and command the operation of the hazardous materials mitigation emergency response team during an emergency mitigation response action.
"Threat of release", a substantial likelihood of a release which requires action to prevent or mitigate an imminent threat to the life, health, or safety of the public which may result from such release.
"Trade secret", anything tangible which constitutes, represents, evidences, or records a secret scientific, technical, merchandising, production, or management information, design, process, procedure, formula, invention, or improvement.
"Vessel", every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.
Section 2. There is hereby established within the department a hazardous materials mitigation emergency response advisory board. The board shall review the development of standards, rules, procedures, and regulations for hazardous materials mitigation emergency response and cost recovery. The board shall consist of the following members: the state fire marshal or his designee; the commissioner of the department of environmental protection or his designee; and four members to be appointed by the governor, two who shall be representatives of the fire chiefs association of Massachusetts, neither of which shall be a hazardous materials technician, and two who shall be representatives of the professional firefighters association of Massachusetts, of which one shall be a hazardous materials technician. The commissioner of the department of environmental protection or his designee shall be a non-voting member. No member shall receive compensation for his service as a member of the board, but shall receive from the commonwealth all expenses necessarily incurred in connection with his official duties. The governor shall appoint each member for a term of three years. Any member shall be eligible for reappointment.
Section 3. The department, acting through the division of hazardous materials response, administered by the state fire marshal or his designee, is authorized and directed to prepare and from time to time update a hazardous materials mitigation emergency response plan. The department in consultation with the board shall promulgate such regulations, procedures, and standards as it deems necessary for the implementation, administration, and enforcement of this chapter. Such regulations, procedures, and standards shall be developed by the department with input and review of the board and may include provisions waiving or limiting the applicability of this chapter as to any matter which the department determines to be adequately regulated by another program or government agency. The department shall integrate its implementation and enforcement of this chapter in conjunction with other programs established for the protection of the public health, safety, welfare, and the environment including the national contingency plan and the Massachusetts contingency plan.
Section 4. The department may, at the request of the local fire department or on its own authority, dispatch member departments of the hazardous materials mitigation emergency response plan to any site in the commonwealth for the purposes of conducting an emergency mitigation response for any hazardous material release or threat of release. During a declared emergency mitigation response action, the team leader shall have complete operational authority for hazardous materials team operations at all times. Once the team leader has determined that the imminent threat of harm from the hazardous materials release has been satisfactorily mitigated, the team leader shall thereafter notify the incident commander. The incident commander shall have authority over the emergency mitigation response site during a declared emergency mitigation response. All emergency mitigation response actions taken by any member department under the hazardous materials mitigation emergency response plan shall be deemed to have been taken on behalf of the department and for the benefit of the commonwealth for purposes of implementing the provisions of this chapter. This chapter shall not be construed in any manner to limit or abridge the right of the department of environmental protection to respond to a release or threat of release pursuant to chapter 21E.
Section 5. (a) Except as otherwise provided in this section: (1) the owner or operator of a vessel or a site from which there is or has been a release of hazardous materials; (2) any person who at the time of storage or disposal owned or operated any vessel or site from which said hazardous materials were stored or disposed and from which there has been a release; (3) any person who by contract, agreement, or otherwise, directly or indirectly arranged for or engaged in the transport, disposal, storage, or treatment of hazardous materials in a site or from a vessel from which there is or has been a release of hazardous materials; or (4) any person who otherwise caused or is legally responsible for a release of hazardous materials from a vessel or a site, shall be liable, without regard to fault, to the commonwealth for the reimbursement of all associated costs, as determined by the department, for an emergency mitigation response action.
(b) The department shall provide any owner, operator or otherwise responsible party whom it reasonably believes is responsible, with an itemized bill of all costs incurred for which the department is seeking reimbursement. Said bill shall be so provided within 60 days from the department ascertaining the identity of the owner, operator, or otherwise responsible party reasonably believed liable, and said bill shall: (1) identify the vessel or the site and date where the response occurred; (2) identify and describe the response action taken; and (3) describe the legal and factual basis for the department's claim to the noticed party for liability pursuant to this section.
(c) Reimbursement for emergency mitigation response costs pursuant to this chapter shall be in addition to any other remedy otherwise available and not be construed in any manner to limit or abridge the right of any person, including the commonwealth, to recover all other reasonable costs, damages, penalties, or fines pursuant to chapter 21E, or any other applicable law, statute, rule, or regulation.
(d) No person, except a person liable pursuant to this chapter, who without charge provides assistance at the request of a duly authorized representative of the department in mitigating a hazardous materials release, shall be held liable for civil damages as the result of any act or omission by him in mitigating a hazardous materials release, except for acts or omissions of gross negligence or willful misconduct.
(e) There shall be no liability under paragraph (a) for a person otherwise liable who can establish by a preponderance of the evidence that the release of hazardous material and the costs incurred as a result of an emergency mitigation response by the department resulting therefrom were caused by: (1) an act of God; (2) an act of war; or (3) an act or omission of a third party other than an employee or agent of the person, or of one whose act or omission occurs in connection with a contractual relationship, directly or indirectly with the person, if the person establishes by a preponderance of the evidence that he exercised due care with respect to the hazardous material and that he took precautions against foreseeable acts or omissions of a third party and the consequences that could foreseeably result from such acts or omissions.
(f) Any person who owns a one to four family residence that is an emergency mitigation response site at which the department has incurred emergency mitigation response costs for the release of oil, shall not be liable to the department for those costs if he can establish by a preponderance of the evidence that: (1) he is not a person described in clauses (3) and (4) of paragraph (a); (2) the site was being used exclusively as a one to four family residence throughout his ownership and he claimed permanent residency at the site; and, (3) he immediately notified the local fire department of the release of oil as soon as he had knowledge of it.
(g) All persons liable pursuant to this section for costs incurred as the result of an emergency mitigation response shall be liable jointly and severally.
(h) No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or operator of any site or from any other responsible person who may be liable for a release of hazardous material under this section, to any other person the liability imposed under this section. Nothing in this paragraph shall bar any agreement to insure, hold harmless, or indemnify a party to such an agreement for any liability under this section.
(i) Notwithstanding any other provision of this chapter, no person who is otherwise liable for a hazardous materials release for which the department has incurred costs from an emergency mitigation response pursuant to this chapter, shall avoid, reduce, or postpone such liability or be allowed to avoid, reduce, or postpone such liability or such person's ability to pay for such liability: (1) by establishing any form of estate or trust if such estate or trust is intended to be a device to avoid, reduce, or postpone such liability; (2) by establishing indicia of ownership to protect what purports to be a bona fide security interest but what is intended to be a device to avoid, reduce, or postpone such liability or such person's ability to pay for such liability; (3) by any conveyance or transfer of ownership or control of property or assets of any kind that purports to be a bona fide transaction but is intended to avoid, reduce, or postpone such liability or such person's ability to pay for such liability; or (4) by any other means that purport to be bona fide but are intended to avoid, reduce, or postpone such liability or such person's ability to pay for such liability.
(j) An agency of the commonwealth or a public utility company that owns a right of way that is a site at which the department has incurred costs for an emergency mitigation response shall not be liable to the commonwealth for those costs if the agency or public utility can establish by a preponderance of the evidence that: (1) it is not the owner or operator of any building, structure, installation, equipment, pipe or pipeline, including any pipe into a sewer or publicly owned treatment works, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft from which the release has occurred; (2) it is not a person or successor to a person described in clause (2), (3), or (4) of paragraph (a); (3) no act of the agency or public utility company, or of the agency or public utility company's employee or agent, caused or contributed to the release of hazardous materials or caused the release of hazardous materials to become worse than it otherwise would have been; (4) it notified the local fire department and the department of environmental protection immediately upon knowledge of a release in accordance with the provisions of chapter 21E; (5) it provided reasonable access, including moving utilities or disrupting service to the site, to the department to conduct emergency mitigation response; or (6) it did not know or have reason to know of the presence of hazardous material on the site when it came into possession of the right of way.
(k) In an action for recovery by the department of the costs of an emergency mitigation response under this chapter, liability to the commonwealth shall be only for the department's actual recoverable response costs, plus litigation costs and reasonable attorney’s fees. However, if the court finds by a preponderance of the evidence that any person who is liable has failed to act reasonably or in good faith by refusing to reimburse the department for emergency mitigation response costs as provided by this chapter, it may in its own equitable discretion award the commonwealth up to three times the total actual recoverable response costs, litigation costs, and attorney's fees.
(l) Notwithstanding the provisions of any general or special law to the contrary, all monies collected by the commonwealth under this chapter by reimbursement, settlement, judgment, or otherwise shall be deposited to the General Fund.
Section 6. No court shall have jurisdiction to review any issue concerning the adequacy of any emergency mitigation response conducted by the department unless the proceeding in court is an action under section 5 to recover costs of an emergency mitigation response action.
Section 7. (a) Any owner, operator, or otherwise responsible party reasonably believed to be liable who is aggrieved by any action of the department may petition the department for administrative review of its actions within ten days of receipt of notice as provided in section 5. The department's review and the procedures for reviewing responses made by the department shall not be adjudicatory proceedings and shall not be subject to the provisions of chapter 30A or any other law governing adjudicatory proceedings. Any owner, operator or otherwise responsible party aggrieved by the decision of the department may bring a civil action in the nature of certiorari, pursuant to section 4 of chapter 249; provided, however, that the action shall be commenced within 30 days of the date of determination on review made by the department.
(b) Upon request of the department, the attorney general may bring an action to recover all costs incurred by the commonwealth for an emergency mitigation response as the result of a hazardous material release.
(c) Actions brought by the attorney general pursuant to this chapter to recover emergency mitigation response costs and actions brought by the attorney general to enforce or foreclose liens recorded or filed pursuant to this chapter, shall be commenced within five years from the date the commonwealth incurs all such costs or five years from the date the commonwealth discovers that the person against whom the action is being brought is a person liable pursuant to this chapter for a hazardous material release for which the commonwealth has incurred emergency mitigation response costs, whichever is later.
Section 8. Any liability to the commonwealth under this chapter shall constitute a debt to the commonwealth. Any such debt, together with interest thereon at the rate of 12 per cent per annum from the date such debt becomes due, shall constitute a lien on all property owned by persons liable under this chapter when a statement of claim naming such persons is recorded, registered, or filed. If a fiduciary or secured lender has title to or possession of the property and is not a person liable under this chapter when a statement of claim is recorded, registered, or filed, such debt and interest thereon at the rate of 12 per cent per annum from the date the debt becomes due, shall constitute a lien on the property in question when a statement of claim describing the property is duly recorded, registered, or filed. Any lien on real property shall be effective when duly recorded at the registry of deeds or registered in the registry district of the land court for the county or district for where the land lies. Any lien for personal property, tangible or intangible, shall require a statement to be filed in accordance with the provisions of chapter 106. Any such statement shall be approved by the department. Any lien recorded, registered, or filed pursuant to this section shall have priority over any encumbrance theretofore recorded, registered, or filed with respect to any site, other than real property principally used as residential housing, described in such statement of claim. All other personal property shall be subject to the priority rules of said chapter 106. Such lien shall continue in force with respect to any real or personal property until a release signed by the department is recorded, registered, or filed in the place where the statement of claim as to such property affected by the lien was recorded, registered, or filed. The department shall forthwith issue such a release in any case where the debt for which such lien attached, together with interests and costs thereon, has been paid or legally abated. If no action to enforce or foreclose the lien is brought by the deadline prescribed in paragraph (b) of section 7, the lien shall be discharged after said deadline. This section shall not apply in any manner to any "public utility" as defined in paragraph (j) of section 5 of chapter 21E.
Section 9. Notwithstanding the provisions of any law to the contrary, any information, record, or particular part thereof, obtained by the department, its personnel or contractors pursuant to the provisions of this chapter, upon request shall be confidential and shall not be considered to be a public record when it is determined by the state fire marshal that such information, record, or report relates to secret processes, methods of manufacture, or production, or that such information, record, or report, if made public, would divulge a trade secret.
DED Grant-Making Authority
Section 28. Section 1 of chapter 23A of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by inserting at the end thereof the following paragraph:-
(c) The department is hereby authorized to make discretionary and non-discretionary grants to any person or entity, including non-public entities, for projects and programs which further implement the mission of the department and its agencies and which benefit the general public; provided, that the department shall annually make a report to the secretary of administration and finance and the house and senate committees on ways and means on the use of such funds; and provided further, that any such grant shall be issued in accordance with regulations promulgated pursuant to section 7 of chapter 7A of the General Laws.
EACC Board Membership Changes
Section 29. Chapter 23A of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out section 3B and inserting in place thereof the following section:-
Section 3B. There shall be an economic assistance coordinating council, hereinafter referred to as EACC, established within the Massachusetts Office of Business Development. The EACC shall consist of: the director of economic development or his designee, who shall serve as co-chairperson; the director of housing and community development or his designee, who shall serve as co-chairperson; the director of labor and workforce development or his designee; the deputy director of the department of economic development having oversight responsibility of the Massachusetts Office of Business Development, or his designee; the president of the Corporation for Business, Work, and Learning or his designee; and seven members to be appointed by the governor, one of whom shall be from the western region of the commonwealth, one of whom shall be from the central region of the commonwealth, one of whom shall be from the eastern region of the commonwealth, one of whom shall be from the southeastern region of the commonwealth, one of whom shall be from Cape Cod or the islands, one of whom shall be a representative of a higher educational institution within the commonwealth, and one of whom shall be from the Merrimack valley, and all of whom shall have expertise in issues pertaining to training, business relocation, and inner-city and rural development, and shall be knowledgeable in public policy and international and state economic and industrial trends. Each member appointed by the governor shall serve at the pleasure of the governor. The EACC shall adopt bylaws to govern its affairs.
DED Coordination of the Quasi-Public Agencies
Section 30. Section 56 of chapter 23A of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out paragraph (a) and inserting in place thereof the following paragraph:-
(a) There shall be within the department of economic development a Massachusetts quasi-public corporation and public purpose agency planning council, hereinafter referred to as the council, which shall not be subject to the control of the department except as provided in this section. The purpose of said council shall be to ensure regular communication and coordination between the quasi-public corporations and public purpose agencies as to their economic development projects, programs and plans. Said council shall consist of the chief executive officers or their designees from the: Corporation for Business, Work, and Learning; Massachusetts Community Development Finance Corporation; Massachusetts Corporation for Educational Telecommunications; Massachusetts Government Land Bank; Massachusetts Industrial Finance Agency; Massachusetts Technology Development Corporation; Massachusetts Micro Electronics Center; Massachusetts Business Development Corporation; Massachusetts Capital Resource Company; and Massachusetts Small Business Development Center. The council shall meet from time to time but no less frequently than monthly. The director of the department of economic development shall appoint personnel necessary to coordinate the activities of the council. Said agencies shall be required to submit to the department, in a form and manner prescribed by the department, any and all information detailing any debt or equity investment, the nature and amount of any investments, any real estate or working capital loans, any funds or technical assistance provided to businesses, any other forms of financing or financial assistance provided businesses, the number of businesses created or enhanced as a result of such investments or assistance, and the number of jobs created as a result of such investments or assistance. The department shall aggregate all such data and annually submit a report to the secretary of administration and finance and the house and senate committees on ways and means. The council is hereby authorized to review and determine whether the present regional offices operated by any corporation subject to this section would appropriately serve the goals of the council in establishing and implementing a more coordinated economic development policy; provided, however, that the council shall maintain no more than eight regional offices through the expansion of said offices already in operation or by establishing any new offices. Each such office shall be responsible for the implementation of the coordinated plans, programs, and projects in its region of the state.
OCCS Authorization to Visit and Inspect Facilities
Section 31. Chapter 28A of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by inserting after section 16 the following section:-
Section 17. Upon petition of the office, the superior court shall have jurisdiction to enter an order permitting the office to enter and inspect, under such conditions as the court deems appropriate, a facility operated by a person whom the office has reasonable cause to believe is subject to licensure or approval under this chapter.
Balanced Budget Definition
Section 32. Section 1 of chapter 29 of the General Laws, as most recently amended by section 3 of chapter 10 of the acts of 1997, is hereby further amended by inserting after the definition of "Appropriation" the following definition:-
"Balanced budget", a condition of state finance in which the consolidated net surplus at the end of the fiscal year is greater than or equal to one-half of one per cent of state tax revenues of such fiscal year.
State Tax Revenues Definition
Section 33. Section 1 of chapter 29 of the General Laws, as most recently amended by section 3 of chapter 10 of the acts of 1997, is hereby further amended by inserting after the definition of "State revenue" the following definition:-
"State tax revenues", the revenues of the commonwealth from every tax, surtax, receipt, penalty and other monetary exaction, and interest in connection therewith, including but not limited to, taxes and surtaxes on personal income, excises and taxes on retail sales and use, meals, motor vehicle fuels, businesses and corporations, commercial banks, insurance companies, savings banks, public utilities, alcoholic beverages, tobacco, inheritances, estates, deeds, room occupancy and parimutuel wagering, but excluding revenues collected by the state from local option taxes, so called, for further direct distribution to cities and towns.
State Building Management Fund
Section 34. Section 2AA of chapter 29 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out the last sentence and inserting in place thereof the following sentences:-
The commissioner of the division of capital planning and operations may make expenditures from this fund without further appropriation to provide for the operational expenses, repair, maintenance, and any other costs associated with the state transportation building, the Springfield state office building, and the Chelsea information technology building. The commissioner shall provide a written report to the secretary of administration and finance and the house and senate committees on ways and means not later than October 31 of each year on the actual revenues and expenditures for each said building in the previous fiscal year, and the projected revenues and expenditures therefor in the current and ensuing fiscal years, including actual and proposed use and occupancy fees to be paid by state agencies and other tenants occupying each said building.
Said section is hereby further amended in line 13 by inserting after the third sentence the following sentence:- Said fees or rental payments shall be subject to the approval of the secretary of administration and finance.
Children's Medical Security Plan (CMSP) Transfer from DPH to DMA
Section 35. Clause (e) of the second sentence of section 2FF of chapter 29 of the General Laws, as amended by section 1 of chapter 170 of the acts of 1997, is hereby further amended by striking out the words "24G of chapter 111" and inserting in place thereof the following words:- 16D of chapter 118E.
Children's Medical Security Plan (CMSP) Transfer from DPH to DMA
Section 36. Clause (f) of the second sentence of section 2FF of chapter 29 of the General Laws, as amended by section 1 of chapter 170 of the acts of 1997, is hereby further amended by striking out the words "24G of said chapter 111" and inserting in place thereof the following words:- 16D of chapter 118E.
Children's Medical Security Plan (CMSP) Transfer from DPH to DMA
Section 37. Clause (c) of the third sentence of section 2FF of chapter 29 of the General Laws, as amended by section 2 of chapter 170 of the acts of 1997, is hereby further amended by striking out the words "24G of chapter 111" and inserting in place thereof the following words:- 16D of chapter 118E.
Caseload Increase Mitigation Trust Fund
Section 38. Section 2KK of chapter 29 of the General Laws, as inserted by section 50 of chapter 43 of the acts of 1997, is hereby amended by striking out the fourth and fifth sentences and inserting in place thereof the following sentences:- The comptroller is hereby authorized and directed to transfer to the Caseload Increase Mitigation Trust Fund established pursuant to section 2NN the amount of any unexpended balance at the end of the fiscal year in any item of appropriation that is charged to the Transitional Aid to Needy Families Fund. After making any such transfer, the comptroller is hereby further authorized and directed to transfer to said Caseload Increase Mitigation Trust Fund the amount of any remaining unexpended balance at the end of the fiscal year in the Transitional Aid to Needy Families Fund.
Caseload Increase Mitigation Trust Fund
Section 39. Chapter 29 of the General Laws is hereby amended by striking out section 2NN, as inserted by section 50 of chapter 43 of the acts of 1997, and inserting in place thereof the following section:-
Section 2NN. There shall be established and set up on the books of the commonwealth a separate fund to be known as the Caseload Increase Mitigation Trust Fund. There shall be credited to said fund all revenues or other financing sources directed to the fund by provision of general or special law, as well as any grant, gift, or other contribution explicitly made to the fund, and income derived from the investment of amounts credited to the fund. Amounts credited to the fund shall be held in trust and used solely for transfer to the General Fund or the Transitional Aid to Needy Families Fund, for the purpose of reimbursing said funds for part or all of the cost of appropriations made from said funds. Said transfers may be made only upon the recommendation of the governor and the approval of the general court, and only (i) in the event that caseloads in the programs conducted pursuant to the provisions of chapter 118 exceed the levels funded by appropriations for such programs in the general appropriation act, (ii) to the extent that such caseloads are projected to exceed the average caseload in the previous fiscal year, or (iii) to accommodate changes in federal funding of the programs authorized by said chapter 118, chapter 5 of the acts of 1995, or regulations promulgated by the department of transitional assistance.
Local Consumer Inspection Fund at the Division of Standards
Section 40. Chapter 29 of the General Laws is hereby amended by striking out section 2 OO, as inserted by section 50 of chapter 43 of the acts of 1997, and inserting in place thereof the following section:-
Section 2 OO. There is hereby established and set up on the books of the commonwealth a separate fund to be known as the Local Consumer Inspection Fund. There shall be credited to such fund all amounts generated from item pricing fines, so called, up to a maximum of $300,000 in any fiscal year. Amounts credited to the fund shall be used, subject to appropriation, for the purpose of enforcing the provisions of chapters 41, 94, 95, 96, 97, 98, 99, 100A, and 101, and such rules and regulations as the director of the division of standards shall promulgate. Any amounts generated from said item pricing fines in excess of $300,000 in any fiscal year shall not be credited to the fund, but shall be deposited in the General Fund.
Balanced Budget Requirement
Section 41. Chapter 29 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by inserting after section 6D the following section:-
Section 6E. The governor shall recommend, the general court shall enact, and the governor shall approve a general appropriation bill which shall constitute a balanced budget for the commonwealth. No supplementary appropriation bill shall be approved by the governor which would cause the state budget for any fiscal year not to be balanced.
Repeal Least Restrictive Tax Cap
Section 42. Chapter 29B of the General Laws, as most recently amended by section 11 of chapter 88 of the acts of 1997, is hereby repealed.
School Building Assistance Grants
Section 43. Section 21A of chapter 44 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by inserting at the end thereof the following sentence:- Upon receipt of notification from a city, town, or regional school district of a decrease in the amount of interest payable related to said projects, the department of education shall recalculate the amount of the state construction grant that is payable to said city, town, or regional school district.
State Reclamation Board Spending Limit
Section 44. Section 20A of chapter 59 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by inserting at the end thereof the following paragraph:-
Notwithstanding the provisions of the preceding paragraph, and subject to the approval of the state reclamation board, mosquito control districts established pursuant to chapter 252 may increase assessments by more than 2.5 per cent over the preceding fiscal year for one-time, extraordinary expenses; provided, that for the purpose of calculating the allowable assessment for a subsequent fiscal year, the amount of any such one-time cost shall be deducted from the base against which said 2.5 per cent increase shall be calculated. If a municipality withdraws from a mosquito control district, the base amount against which the allowable 2.5 per cent increase shall be calculated for the subsequent fiscal year shall be decreased by the amount attributed to such municipality. If a municipality joins a mosquito control district, said district's assessment may increase by an amount equal to 2.5 per cent as provided herein plus the amount of assessment for such municipality.
Conforming Mutual Fund and S Corporation Tax Treatment
Section 45. Section 1 of chapter 62 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by adding after subsection (m) the following subsection:-
(n) Notwithstanding any other provisions of this chapter, (1) the definition of a regulated investment company for purposes of this chapter shall include any regulated investment company that qualifies under section 851 of the Internal Revenue Code as amended and in effect for the taxable year, (2) the definition of a real estate investment trust for purposes of this chapter shall include any real estate investment trust that qualifies under section 856 of the Internal Revenue Code as amended and in effect for the taxable year, (3) the definition of a real estate mortgage investment conduit for purposes of this chapter shall include any real estate mortgage investment conduit that qualifies under section 860D of the Internal Revenue Code as amended and in effect for the taxable year, (4) the definition of an S corporation for purposes of this chapter shall include any corporation that qualifies as an S corporation under section 1361 of the Internal Revenue Code as amended and in effect for the taxable year, but shall not include a corporate trust.
Income Exclusion for Sale of Principal Residence
Section 46. Paragraph (2) of subsection (a) of section 2 of chapter 62 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by inserting at the end thereof the following subparagraph:-
(K) Gain from the sale of a principal residence included in federal gross income under section 121 of the Code in effect on January 1, 1988, but excluded from federal gross income under section 121 of the Code as amended and in effect for the taxable year. For purposes of recognizing gain on the sale of a principal residence, the provisions of section 1034 of the Code shall not be applicable.
MEFA and Education IRA Tax Exemption
Section 47. Paragraph (2) of subsection (a) of section 2 of chapter 62 of the General Laws, as amended by section 46 of this act, is hereby further amended by inserting at the end thereof the following two subparagraphs:-
(L) Any amount of federal gross income, as defined in section 1, attributable to earnings on or distributions from a college savings program authorized under chapter 15C, to the extent that such distributions are used to pay for qualified educational expenses, as defined in section 529 of the Code, as amended and in effect for the taxable year.
(M) The amount of any distribution from an education individual retirement account to the extent that such amount is both (i) included in federal gross income under the Code as defined in section 1 and (ii) excluded from federal gross income under section 530 of the Code as amended and in effect for the taxable year.
Income Tax Exemption for Elder Home Care
Section 48. Subparagraph (1) of paragraph (b) of part B of section 3 of chapter 62 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by inserting at the end thereof the following:-
(D) an additional exemption of $5,000 if the taxpayer provided more than one-half of the support for an elderly relative who has attained at least the age of 70 by the end of the taxable year, provided that the said relative resides with the taxpayer for more than 8 months of the taxable year and that the adjusted gross income of the taxpayer does not exceed $100,000 for the year in which the exemption is being claimed.
Income Tax Exemption for Elder Home Care
Section 49. Subparagraph (1A) of paragraph (b) of part B of section 3 of chapter 62 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by inserting at the end thereof the following:-
(D) an additional exemption of $5,000 if the taxpayer provided more than one-half of the support for an elderly relative who has attained at least the age of 70 by the end of the taxable year, provided that the said relative resides with the taxpayer for more than eight months of the taxable year and that the adjusted gross income of the taxpayer does not exceed $100,000 for the year in which the exemption is being claimed.
Income Tax Exemption for Elder Home Care
Section 50. Subparagraph (2) of paragraph (b) of part B of section 3 of chapter 62 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by inserting at the end thereof the following:-
(D) an additional exemption of $5,000 if the taxpayer provided more than one-half of the support for a relative who has attained at least the age of 70 by the end of the taxable year, provided that said relative resides with the taxpayer for more than eight months of the taxable year and that the adjusted gross income of the taxpayers does not exceed $100,000 for the year in which the exemption is being claimed.
Reducing the Income Tax Rate on Part A Income from 12% to 5%
Section 51. Subsection (a) of section 4 of chapter 62 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by inserting in line 6, after the words "per cent", the following words:- for taxable years beginning before January 1, 1999; 10.6 per cent for taxable years beginning on or after January 1, 1999 and before January 1, 2000; 9.2 per cent for taxable years beginning on or after January 1, 2000 and before January 1, 2001; 7.8 per cent for taxable years beginning on or after January 1, 2001 and before January 1, 2002; 6.4 per cent for taxable years beginning on or after January 1, 2002 and before January 1, 2003; and 5.0 per cent for taxable years beginning on or after January 1, 2003.
Reducing the Personal Income Tax Rate on Part B Income from 5.95% to 5%
Section 52. Section 4 of chapter 62 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out subsection (b) and inserting in place thereof the following subsection:-
(b) Part B taxable income shall be taxed at the rate of 5.95 per cent for taxable years beginning on or after January 1, 1998 and before January 1, 1999; 5.6 per cent for taxable years beginning on or after January 1, 1999 and before January 1, 2000; 5.3 per cent for taxable years beginning on or after January 1, 2000 and before January 1, 2001; and 5 per cent for taxable years beginning on or after January 1, 2001.
Conforming Roth IRA and Education IRA Treatment
Section 53. Subsection (b) of section 5 of chapter 62 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by inserting in line 66 after the word "Code", the following words:- or any individual retirement account qualifying under section 408A of the Code, as amended and in effect for the taxable year, or any education individual retirement account qualifying under section 530 of the Code, as amended and in effect for the taxable year.
MEFA and Education IRA Tax Credit
Section 54. Section 6 of chapter 62 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by inserting at the end thereof the following subsection:-
(h) A credit shall be allowed against taxes imposed under this chapter for contributions made by a taxpayer to a college savings program authorized under chapter 15C or to an education IRA established under section 530 of the Code as amended and in effect for the taxable year. The cumulative credit to a taxpayer contributing to such chapter 15C program or education IRA shall not exceed $250 per beneficiary of the contribution in any taxable year.
Education Reform - Minimum Contribution Waiver
Section 55. Chapter 70 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by inserting after section 6 the following section:-
Section 6A. (a) Upon the request of the selectmen in a town, the city council in a plan E city, or the mayor in any other city, the department of revenue may recalculate the minimum required local contributions, as defined in section 2, in any fiscal year. Based on the criteria outlined in this section, the department shall recalculate the minimum required local contributions for a municipality's local and regional schools and certify the amounts calculated to the department of education.
(b) Any city or town that used qualifying revenue amounts in a fiscal year which will not be available for use in the next fiscal year, or that will be required to use revenues for extraordinary, non-school related expenses for which it did not have to use revenues in the preceding fiscal year, or that has an excessive certified municipal revenue growth factor which is also greater than or equal to one and one-half times the state average municipal revenue growth factor, may appeal to the department of revenue not later than October 1 of the year to which said waiver would apply for an adjustment of its minimum required local contribution and net school spending.
(c) If the claim is determined to be valid, the department of revenue may reduce proportionately the minimum required local contribution amount based on the amount of shortfall in revenue or based on the amount of increase in extraordinary expenditures in the current fiscal year, but no adjustment to the minimum required local contribution on account of an extraordinary expense raised in the budget of a fiscal year shall affect the calculation of the minimum required local contribution in subsequent fiscal years. Qualifying revenue amounts shall include, but not be limited to, extraordinary amounts of free cash, overlay surplus, and other available funds.
(d) If, upon submission of adequate documentation, the department of revenue determines that the municipality's claim regarding an excessive municipal revenue growth factor is valid, said department shall recalculate said municipal revenue growth factor and the department of education shall use this revised growth factor to calculate preliminary local contribution, minimum required local contribution, and any other factor that directly or indirectly uses the municipal revenue growth factor. Any relief granted as a result of an excessive municipal revenue growth factor shall be a permanent reduction in minimum required local contribution.
(e) Upon the request of the selectmen in a town, the city council in a plan E city, or the mayor in any other city, in a majority of the member municipalities, any regional school district which used qualifying revenue amounts in a fiscal year that will not be available for use in the next fiscal year shall appeal to the department of revenue not later than October 1 of the year to which said waiver would apply for an adjustment to its net school spending requirement. If the claim is determined to be valid, the department of revenue shall reduce the net spending requirement based on the amount of the shortfall in revenue and reduce the minimum required local contribution of member municipalities accordingly. Qualifying revenue amounts shall include, but not be limited to, extraordinary amounts of excess and deficiency, surplus, and uncommitted reserves.
(f) If the regional school budget has already been adopted by two-thirds of the member municipalities, then upon a majority vote of the member municipalities the regional school committee shall adjust the assessments of the member municipalities in accordance with the reduction in minimum required local contributions approved by the department of revenue in accordance with the provisions of this section.
(g) Any regional school district which received regional school incentive aid in the prior fiscal year shall, upon the request of the selectmen in a town, the city council in a plan E city, or the mayor in any other city, in a majority of the member municipalities, appeal to the department of education for an adjustment in the minimum required local contribution of its member municipalities. The department of education may reduce the increased assessment of the member municipalities as a result of the reorganization of the regional school district by using a portion of the regional incentive aid to reduce the prior year local contribution.
(h) Notwithstanding the provisions of clause (14) of section 3 of chapter 214 or any other general or special law to the contrary, the amounts so determined shall be deemed to be the minimum required local contribution described in this chapter; provided, however, that the house and senate committees on ways and means and the joint committee on education, arts and humanities shall be notified by the department of revenue of the amount of any reduction in the minimum required local contribution amount.
(i) In the event that a city or town has an approved budget that exceeds the recalculated minimum required local contribution and net school spending amounts for its local school system or its recalculated minimum required local contribution to its regional school districts as provided by this section, the local appropriating authority shall determine the extent to which the community avails itself of any relief authorized under this section.
(j) In the fiscal year in which a waiver is granted, the amount of financial assistance due from the commonwealth under this chapter or any other provision of law shall not be changed on account of any redetermination of the required minimum local contribution under this section. The department of revenue shall issue guidelines for its duties under this section.
Charter School Cap
Section 56. Section 89 of chapter 71 of the General Laws, as amended by section 2 of chapter 46 of the acts of 1997, is hereby further amended by striking out subsection (i) and inserting in place thereof the following subsection:-
(i) The board of education shall make the final determination on granting charter school status and may condition a charter on the applicant's taking certain actions or maintaining certain conditions. No more than 125 charter schools shall be allowed to operate in the commonwealth at any time. In any fiscal year, no public school district's total charter school tuition payment to commonwealth charter schools shall exceed 12 per cent of said district's net school spending, provided that for a school district with students attending schools that were chartered before fiscal year 1998, the school district's total charter school tuition payment to said charter schools shall not exceed either 12 per cent of said district's net school spending or the per cent of said district's net school spending paid for charter school tuition in fiscal year 1998 plus three per cent, whichever is greater. Of the total number of charter schools in the state, 25 shall be reserved for Horace Mann charter schools and 100 shall be reserved for commonwealth charter schools; provided, however, that in the event that fewer than 25 proposals for Horace Mann schools are submitted to the board of education within three years of the effective date of this act, no more than five charter school slots for said Horace Mann charter schools shall be made available for commonwealth charter schools. Under no circumstances shall the total number of students attending commonwealth charter schools exceed 4 per cent of the total number of students attending public schools in the commonwealth. In approving new charters in any year, the board may give priority to proposals for schools located in low performing districts based upon, but not limited to, such indicators as scores on statewide assessments and drop out rates. The board may also give priority to schools that have demonstrated broad community support, an innovative educational plan, and a demonstrated commitment to assisting the district in which they are located in bringing about educational change.
Executive Office for Administration and Finance
Fiscal Affairs Division
State House, Room 272
Boston, MA 02133
(617) 727-2081
Last updated on January 21, 1998
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