Alerts

Under the Dome: Inside the Maine State House 5.17.13

Fri, 17 May 2013 12:00 AM PST

Under the Dome: Inside the Maine State House is a weekly update that provides a high-level overview of recent activity at the Maine State House. If you would like more specific information regarding an item in this newsletter or related to government relations, please contact a member of our Government Relations Practice Group: John Delahanty, Andrea C. Maker or Avery Day.

Governor’s Fourth and Fifth Vetoes of the Session Sustained

Last week, Governor LePage vetoed his fourth bill of the session, LD 6, An Act Regarding the Authority of a School Board to Elect a School Superintendent. This bill would have overridden several municipal charter requirements relating to local residency requirements for superintendents. On May 14th, the House voted to sustain the Governor’s action in what was largely a party-line vote. Because the House did not muster the required 2/3rds vote to override the Governor’s veto, this bill is now dead. The very next day, the Senate considered the fifth bill vetoed by the Governor this session, LD 521, An Act to Change the Budget Approval Process for Alternative Organizational Structure. This bill would have changed the school budget approval process for alternative organizational structures. The Senate, by one vote, sustained this veto as well, killing this proposal.

Negotiations on Hospital Repayment Tied to Medicaid Expansion

In what has been termed a “surprise vote,” the Health and Human Services Committee voted on May 15th to link legislation expanding Maine’s Medicaid program to a proposal to pay the State’s debt to hospitals. Since nearly the beginning of the session, the Veterans and Legal Affairs Committee in conjunction with the Appropriations and Financial Affairs

Under the Dome: Inside the Maine State House 5.10.13

Fri, 10 May 2013 12:00 AM PST

Senate Confirms Tim Schneider as Maine’s Next Public Advocate

On May 7th, the full Senate voted to confirm Governor LePage’s nomination of Tim Schneider as Maine’s next Public Advocate. Tim will assume this position after practicing energy law in Pierce Atwood’s Energy Practice Group since 2008. The Public Advocate is charged with representing ratepayers’ interested in proceedings before the Public Utilities Commission as well as in regional and federal matters.

Governor LePage Vetoes Two More Bills

Last week, Governor LePage vetoed his third bill of the session, LD 405, An Act to Increase Municipal Agent Fees for Licensing and Registration of Motor Vehicles. On May 7th, the House voted to sustain the Governor’s action in what was largely a party-line vote. The same day that the Governor’s veto of LD 405 was sustained, the Governor vetoed his fourth bill of the session, LD 6, An Act Regarding the Authority of a School Board to Elect a School Superintendent. This bill seeks to override several municipal charter requirements relating to local residency requirements for superintendents. The House will vote first on whether to sustain or override this veto. That vote may take place early next week.

Governor Releases Budget “Change Package”

On May 8th, the Governor’s Office rel

Sweeping Maine Tax Reform Proposal Announced

Fri, 03 May 2013 12:00 AM PST

A bipartisan group of 11 legislators have proposed an overhaul of Maine’s tax system, including major changes to the individual and corporate income tax, property tax, sales tax, and estate tax. The goal of the overhaul is to export more of the state’s tax burden to non-residents, thereby reducing the tax burden on Mainers and attracting individuals and businesses to the state. If enacted, the overhaul would have significant changes for Maine businesses. Although the actual statutory language of the proposal has not yet been drafted, the following is a summary of the key components of the plan.

Property Tax

Maine residents would receive a $50,000 homestead exemption
The exemption for non-profit entities, other than churches, would be reduced from 100 percent to 75 percent
The telecommunications tax would be paid to municipalities rather than the state
Property tax reimbursements to businesses under the BETR program would be funded only for 12 years after the property is placed in service

Income Tax

The individual income tax rate would be lowered to 4 percent, but would apply against adjusted gross income, thereby eliminating most deductions
Low-income taxpayers would pay no income tax and be entitled to a property tax fairness credit and a sales tax fairness credit
Nearly all tax deductions and tax credits would be eliminated, including the pine tree zone program and the new markets capital investment program
The corporate income tax rate would be lowered from 8.93 percent to 7.5 percent

Estate Tax

Vapor Intrusion -- EPA Offers Guidance for Comment, but Now More Issues than Ever

Fri, 03 May 2013 12:00 AM PST

by Kenneth Gray

After being taken to task by states and its own Inspector General for lack of final guidance on Vapor Intrusion, EPA has just released draft guidance documents for hazardous substances and petroleum products for comment. The guidance documents are already generating discussion on the blogosphere, with comments due to EPA by May 24th. Below are some of the issues EPA will have to address for its guidance for hazardous substances, and those of us addressing vapor intrusion for our clients.

Will the guidance collapse under its own weight? EPA’s recommended framework relies upon collecting and evaluating multiple lines of evidence to support risk management decisions, detailed investigation of vapor intrusion including rigorous data quality objectives and recognition of seasonal/temporal variability in levels, consideration of options for building mitigation and subsurface remediation, decisions on how institutional controls can be crafted and monitored, and how the public will be involved. The practical question is how much evidence and process is enough for a rational decision, and how costly and time-consuming an evaluation effort is justified? Rarely are actions taken quickly in the CERCLA or RCRA world, but if there are risks, then they should be acted upon, and applying the guidance in other contexts will be challenging. There already appears to be a consensus that EPA’s approach will be costly, and give vapor intrusion a life of its own in remedial decision-making. EPA will have to address this issue, or find its guidance bypassed or ignored, given the need for timely decisions.

Should we all buy stock in fan manufacturers and makers of synthetic vapor barriers? EPA offers (only on page 125 of 143) the question of weighing relative costs of characterization vs. engineered exposure controls. If EPA guidance is followed, the

Under the Dome: Inside the Maine State House 5.3.13

Fri, 03 May 2013 12:00 AM PST

This Week's Highlights

Legislature Enters Final Stretch
Appropriators Receive Bad News Regarding Revenue Forecast
Tax Reform Proposal Officially Rolled Out
Major Initiatives of the Governor Topic of Debate
Election Speculation Remains a Pass Time in Augusta
Utilities Committee Unanimously Approves Tim Schneider to be Public Advocate
Security Screening at the State House Likely to Remain
Proposal to Require Disclosure of Corporate Tax Information Heard in Committee
Repeal of Law Limiting Employer’s Right to Oversee Firearms at the Workplace Voted on in Committee

Legislature Enters Final Stretch

The Legislature has entered the final stretch in the push toward adjournment on June 19th. In order to adjourn on time, the presiding officers have set May 17th as the date by which Committees must vote on all of their bills. This will be a difficult deadline to meet. In fact, as of Monday of this week, Committees had voted on roughly 50 percent of their anticipated bill load, leaving more than

Under the Dome: Inside the Maine State House 4.26.13

Fri, 26 Apr 2013 12:00 AM PST

Major Tax Reform Proposal Starts to Take Shape

This week, the Maine media reported that Senator Woodbury is leading a bipartisan effort to draft a major tax reform proposal. This proposal will likely propose changes to all aspects of the tax code from the income tax to the sales tax to the estate tax. A bipartisan group of eleven legislators are working together on this proposal. The central thrust of this effort appears to be trying to shift much of Maine’s tax burden on to nonresidents.

In the past, wholesale tax reform efforts have not been successful. While the current effort will almost certainly be met with some opposition, this proposal could advance, providing an alternative approach to balancing the State’s budget. It would allow legislators to avoid politically unpopular aspects of the Governor’s budget proposal, like suspending municipal revenue sharing. This issue will continue to evolve as the reform package is finalized.

Unemployment System Matter Continues to Evolve

As reported last week, Governor LePage recently met with a number of unemployment hearing officers, which led the Maine Employment Lawyers Association to request a U.S. Department of Labor investigation into whether the Governor pressured these hearing officers. As this story was unfolding, the Governor’s Office announced that the Governor was forming a blue ribbon commissi

DEP Proposes New Requirements for Industrial Solvent Cleaning Activities

Wed, 24 Apr 2013 12:00 AM PST

On April 17, 2013, DEP posted to public comment proposed changes to its Chapter 130, Solvent Cleaning Regulation. The proposed changes would expand the applicability of the regulation from covering “solvent cleaning machines” to covering “solvent cleaning operations.” The proposed rule can be found here.

Under the proposal, industrial solvent cleaning activities with pre-control VOC emissions in excess of 5,400 lbs. during any consecutive 12-month period would be subject to new emissions and work practice requirements. Industrial solvent cleaning activities with pre-control emissions less than 5,400 lbs. would be subject to new recordkeeping requirements. The proposed regulation defines “industrial solvent cleaning” to include “the use of cleaning solvent to remove uncured adhesives, uncured inks, uncured coatings or contaminants…from parts, products, tools, machinery, equipment and work areas…incorporated into or used exclusively in manufacturing a product,” including but not limited to “spray booth cleaning, cleaning of manufactured components, parts cleaning, [and] cleaning of production equipment for maintenance….”

Note that the existing 5% VOC exemption for cold cleaning machines would not apply to many industrial solvent cleaning operations covered by the new proposal.

The proposed regulatory changes would exempt certain activities subject to Chapters 123, 129, 154, 159, 161, 162, laboratory testing, and R&D activities.

DEP is accepting public comments on its proposal until May 17, 2013. If you would like assistance determining whether the DEP’s proposed changes will affect your operations and, if so, developing comments for submission to DEP t

Employers must use the new Form I-9 starting May 7, 2013. Is your organization prepared?

Tue, 23 Apr 2013 12:00 AM PST

A new version of Form I-9 was released by USCIS on March 8, 2013. Employers were required by law to begin using the new version of Form I-9 effective immediately, but USCIS gave employers a 60-day grace period to implement the new form into business practice. This 60-day grace period will run out on May 7, 2013. Employers must use the new version of Form I-9 for any new hires or I-9 re-verifications completed on or after May 7, 2013.

Federal law requires that every employer hiring an individual for employment in the United States must complete a Form I-9, Employment Eligibility Verification. The new version of Form I-9 includes new fields for employee telephone numbers and e-mail addresses. The new version has also been reformatted and is now two pages in length. The new version of Form I-9 is available at uscis.gov.

We prepared the presentation below as an essential, interactive introduction to the new Form I-9 that identifies the changes and provides instructions. Click on the arrows at the bottom of the presentation screen to advance.

For additional information, employers can contact Tony Derosby or Katie Minervino. For updates regarding employment authorization and immigration, you can also follow Katie on Twitter @kminervino as she closely tracks E-Verify and other immigration-related developments.

Under the Dome: Inside the Maine State House 4.19.13

Fri, 19 Apr 2013 12:00 AM PST

Legislature Prepares to Enter Final Leg of Session

A quiet week in Augusta. The House and Senate did not meet and only five Committees met to work on legislation. When the Legislature returns next week, there will be less than two months to go until the statutory adjournment date of June 19th, and there is much work to be completed between now and adjournment.

Committees of jurisdiction are processing those portions of the biennial budget that fall under their purview, but the bulk of the negotiations at the Appropriations Committee have yet to take place. Substantive legislation continues to make its way through the Legislature’s various committees. Not all bills have been printed at this point. Some particularly controversial measures have languished and will not be addressed until the final weeks of session. Committees will eventually complete their work and then attention will fall to the House and Senate as they start to “move paper” in earnest. Right now, the House and Senate are meeting in session three days a week but that schedule will be adjusted and by the week of May 13th, both chambers will be meeting five days a week to process bills.

Unemployment System Under Scrutiny

Augusta’s latest political controversy, touching on Maine’s unemployment appeals process, emerged over the last week. Based on reports from a meeting Governor LePage

Massachusetts Packaging Plant Pays Nearly $485K Penalty for Environmental Violations

Wed, 17 Apr 2013 12:00 AM PST

A packaging company in Dudley, MA has agreed to pay $484,900 in penalties to settle EPA claims that the company violated numerous federal and state regulations. The violations occurred at the company’s liquid and aerosol packaging facility. This case is a reminder that environmental regulations regarding hazardous waste sweep broadly and often encompass activities that a typical manufacturing company might not recognize.

According to EPA’s complaint, filed in September 2012, Shield Packaging Company, Inc. (the Company) violated rules regarding hazardous waste management, chemical accident prevention, hazardous chemical inventory reporting, and oil pollution prevention contained in the Clean Air Act (CAA), the Emergency Planning & Community Right to Know Act (EPCRA), the Clean Water Act (CWA), and the Massachusetts Hazardous Waste Management Regulations.

Among other specific allegations, EPA asserted that the Company violated requirements in the CAA’s chemical accident prevention provisions by not fully developing and putting in place a risk management plan that adequately addressed processes that used extremely hazardous substances. The Company also failed to submit a required inventory of all hazardous materials on site to emergency responders under EPCRA, and failed to fully implement an Oil Spill Prevention, Control and Countermeasure plan, as required by federal law. Finally, the Company violated the Massachusetts Hazardous Waste Management Regulations by failing to conduct hazardous waste determinations on wastes at the facility, failing to manage hazardous wastes in accordance with required federal and state management practices, and failing to implement an adequate hazardous waste management training program at the facility.

This situation is particularly notable for the fact that numerous seemingly benign activities resulted in violations leading to serious financial consequences, including m

Under the Dome: Inside the Maine State House 4.12.13

Fri, 12 Apr 2013 12:00 AM PST

Governor’s Veto of Tanning Bill Sustained by Senate

Governor LePage’s second veto of the 126th Legislature was sustained this week in the Senate. Last week, the Governor vetoed LD 272, An Act to Reduce Youth Cancer Risk. This bill would have prohibited individuals under the age of 18 from using tanning facilities. Support for this bill was divided along party lines when it proceeded through the Legislature. The Governor vetoed the bill and on April 9th the Senate voted to sustain this veto on a party line vote, killing this bill.

Gun Control Proposals Heard in Committee

This week, the Criminal Justice and Public Safety Committee held a series of hearings on over twenty separate proposals to either regulate guns or modify Maine’s concealed weapons permit program. One of these bills, LD 265, was of particular interest to the business community. This bill, An Act to Repeal the Restriction on Employers Regarding Firearms Kept in an Employee’s Vehicle, would repeal a law enacted during the last Legislature. Under this new law an employer may not prohibit an employee with a concealed weapons permit from keeping a firearm in their locked vehicle while at work. The original law was passed over the strong opposition of a number of Maine companies. At this week’s hearing, the bill to repeal this recently enacted law was supported by a number of emp

Under the Dome: Inside the Maine State House 4.5.13

Fri, 05 Apr 2013 12:00 AM PST

Governor LePage Issues First Vetoes of 126th Legislature

This week, Governor LePage vetoed two bills: LD 49, An Act to Amend the Laws Governing Payment of Fees to Registers of Deeds, and LD 272, An Act to Reduce Youth Cancer Risk. These were the first vetoes of the 126th Legislature and likely will not be the last time the Governor uses his veto pen this year.

LD 49 was a noncontroversial bill related to fees collected by registers of deeds and the Governor’s veto was unexpected. When the Governor’s veto was considered in the House, all but six members voted to override the veto. When this vetoed bill was presented to the Senate, however, the Senate narrowly voted to sustain the Governor’s veto by a margin of just one vote, killing the bill.

LD 272 relates to the use of tanning beds by individuals under the age of 18. This bill was the subject of heated debate when it initially proceeded through the Legislature and party line votes were taken on this bill in both the House and the Senate. The Governor vetoed this bill and his veto will likely be considered by the Legislature next week. Initial votes in both chambers indicate that there likely is not sufficient support for this bill to override the Governor’s veto.

Minimum Wage Proposal Sent to the Governor’s Desk

This week, the Legislature completed action on LD 611, An Ac

Under the Dome: Inside the Maine State House 3.29.13

Fri, 29 Mar 2013 12:00 AM PST

Appropriations Committee Continues to Hear Biennial Budget

The Appropriations Committee wrapped up its third week of hearings on the Governor’s biennial budget proposal on Friday. This week, the Committee spent Monday in Brewer to hold a field hearing on the budget, an unusual move for the Appropriations Committee. The Committee has one more week of public hearings scheduled before the Committee will begin working the budget as a Committee. Committees of jurisdiction have been meeting to formulate recommendations on budget issues falling under their purview. These Committees will report their findings to the Appropriations Committee to inform its deliberations on the budget.

Governor Turns Pension Debate into Call for Action on Hospital Repayment Plan (Ya Mon!)

This week, the State and Local Government Committee considered a bill to provide pensions only to Governors who serve two full terms. This bill, which was a topic of conversation in Augusta, is seen as a partisan swipe at Governor LePage. Governor LePage, who is vacationing in Jamaica, used this bill as a foil to call for action on his proposal to repay the State’s debt owed to hospitals. On Wednesday evening, a tweet from the Governor’s Twitter account read: “News Flash from Jamaica: If Democrats have my hospital bill on my desk by Saturday, I will give up my pension. Ya Mon!”

Choice of Entity for Closely Held Businesses – The Affordable Care Act Further Complicates the Decision

Tue, 26 Mar 2013 12:00 AM PST

When starting a new business, an entrepreneur faces an important decision: the type of entity to form to operate the business. The two most common choices for closely held businesses are “S” corporations and limited liability companies (“LLCs”).

In 2010, we wrote about the “S” corporations and LLCs and the various factors to consider when choosing between them (e.g., pass-through income taxation, employment taxes, flexibility of capital structure, allocation of profits and losses, types of owners, and the ability to distribute property in kind) in an article entitled "Choice of an Entity for Closely Held Business: S Corporations, LLC and Employment Taxes." This article focuses on just one of those factors, employment taxes, and discusses the effect of the new taxes imposed by the Affordable Care Act on the choice of entity decision.

Employment taxes often have been (rightly or wrongly) the deciding factor in choosing between an “S” corporation and an LLC. Where employment taxes are the deciding factor, entrepreneurs typically choose the “S” corporation because of the potential to realize employment tax savings when an owner-employee expects that her salary will be less than her share of the net earnings of the corporation. With an “S” corporation, only the salary paid to the employee-owner is subject to employment taxes, whereas active employee-owners of an LLC pay employment tax on their entire share of the LLC’s income.

In 2013, employment taxes are made up of Social Security tax equal to 12.4 percent of the first $113,700 of wages or self-employment income, and Medicare tax equal to 2.9 percent of the total wages or self-employment income. In the case of wages, the employer pays one half of these taxes. In the case of self-employment tax, the employee pays the entire amount.

Beginning this year,

NH Supreme Court Says Unlawful Operation of Solid Waste Facility or Septic System Can Result in Criminal Penalties

Mon, 25 Mar 2013 12:00 AM PST

On March 20, 2013, the New Hampshire Supreme Court issued a decision in State v. Guay, holding that the defendant’s unlawful operation of a solid waste facility or septic system can result not just in civil fines, but also in criminal penalties. This decision clarifies an ambiguity in New Hampshire law, and increases the need for diligence in complying with state requirements when operating a solid waste facility or septic system.

The case began when an investigator from the New Hampshire Department of Environmental Services (DES) discovered numerous buried objects on two of the defendant’s properties. These items included a 275-gallon home heating oil tank, carpeting, old mattresses, foam insulation, and sheetrock. An investigation of one of the properties also revealed liquid on top of the defendant’s septic system and a garden hose attached to a sump pump that channeled untreated brown water from a septic tank, bypassing the leach field and discharging liquid in the direction of a river.

Based on the DES investigator’s discoveries, the State charged the defendant with three misdemeanors: two counts of unlawful operation of a solid waste facility and one count of unlawful maintenance of a septic system.

One of the main issues on appeal concerned whether NH RSA 485-A:37, the statute prohibiting unlawful operation of a solid waste facility or septic system, allowed for criminal penalties, as opposed to merely civil fines. The plain language of RSA 485-A:37 provides that persons who operate a solid waste facility or septic system in violation of that chapter are subject to penalties provided in RSA 485-A:43, IV, which provides only for a civil fine up to $1,000 per day. The defendant thus argued that the State was precluded from filing criminal charges by the plain language of the statute. The State pointed to RSA 485-A:43, I, which provides that any person who violates a

Under the Dome: Inside the Maine State House 3.22.13

Fri, 22 Mar 2013 12:00 AM PST

Under the Dome: Inside the Maine State House is a weekly update that provides a high-level overview of recent activity at the Maine State House. If you would like more specific information regarding an item in this newsletter or related to government relations, please contact a member of our Government Relations Practice Group: John Delahanty, Andrea C. Maker or Avery Day.

Governor Does Not Act on Veto Threat

Governor LePage recently announced that he would veto all legislation sent to his desk until a plan to repay the State’s debt to Maine hospitals was enacted. This week, the Veterans and Legal Affairs Committee held two work sessions on the Governor’s plan to rebid the State’s liquor contract and use revenues from that enterprise to pay the hospital debt. The Committee also worked a competing Democratic proposal. While the plan has not yet been sent to the Governor’s desk, the Governor signed a bill related to the sale of alcohol on St. Patrick’s Day and allowed six additional bills to become law without his signature. The governor called this a “gesture of good faith.”

Appropriations Committee Continues Public Hearings on Biennial Budget

The Appropriations Committee has wrapped up its second week of public hearings on the biennial budget. The Committee has scheduled two additional weeks of public hearings, which are now anticipated to run until at least April 5th. This week, the Committee heard from the public on education funding issues. The Governor’s proposal to require municipalities to pay for all or some of their teacher’s retirement costs was particularly controversial and contributed to a long day for Committee members.

In an unusual move, the Appropriations Committee will meet in Brewer o

First Circuit Sets Low Bar for Clean Water Act Pre-Suit Notice, Making It Easier for Citizen Enforcement Actions to Move Forward

Fri, 15 Mar 2013 12:00 AM PST

On March 13, 2013, the United States Court of Appeals for the First Circuit held that pre-suit notice for a citizen enforcement action under the Clean Water Act (“CWA”) does not need to spell out every violation in detail. This holding in Paolino v. JF Realty, case number 12-2031, makes it easier for citizen enforcement actions to move forward, and may lead to increased enforcement actions by citizen groups in the future.

While state and federal authorities are authorized to enforce the CWA through suit, citizens are also given a more limited enforcement role. A citizen may bring a civil enforcement action in federal district court against an NPDES permit holder for failure to comply with that permit’s conditions. At least sixty days before bringing suit, a citizen plaintiff must give notice of the alleged violations to the state in which the violations occurred, the EPA administrator, and the alleged defendant violators.

In the Paolino case, two citizen plaintiffs filed suit against the defendants in the U.S. District Court for the District of Rhode Island, alleging that the defendants were in continuing violation of the CWA because their pollutant discharge permit was not in the name of the property’s current owner and because the property was continually discharging pollutants into United States waters.

The District Court dismissed the suit, holding that the pre-suit notice had failed to describe the alleged violations with enough specificity. Confronting an issue of first impression within the First Circuit, the Court of Appeals reversed, holding that “the appropriate measure … is whether the notice’s contents place the defendant in a position to remedy the violations alleged.” Under this standard, the First Circuit determined that the plaintiffs’ n

Under the Dome: Inside the Maine State House 3.15.13

Fri, 15 Mar 2013 12:00 AM PST

Spring-Like Weather Brings Slight Thaw to Governor’s Veto Threat

Governor LePage recently announced that he would veto all legislation sent to his desk until a plan to repay the State’s debt to Maine hospitals was enacted. This week, there was some movement on this issue. On the 11th, the Veterans and Legal Affairs Committee held a public hearing on the Governor’s plan to rebid the State’s liquor contract and use revenues from that enterprise to pay the hospital debt. The Committee also heard a competing Democratic proposal. Just before the hearing, Democrats in the Legislature agreed that these two issues should be tied together. Of note that day, the Governor himself delivered testimony on his proposal, an unusual occurrence at the State House.

Throughout the week, progress was made as the Governor and legislative Democrats appeared to be inching closer and closer to an agreement on this issue and the first sign of a slight thaw in Augusta appeared on the 14th. That day, the Legislature enacted a bill that would allow bars to open at 6:00 am on a Sunday (as opposed to 9:00 am), if St. Patrick’s Day falls on a Sunday. Obviously, for this bill to have any effect, it must become law before the 17th. The Governor indicated that he would indeed sign this bill in time for St. Patrick’s Day. This small step may help pave the way to an agreement on paying Maine’s hospital

Maine DEP Publishes Revised Remedial Action Guidelines on Hazardous Substances for Comment

Fri, 15 Mar 2013 12:00 AM PST

The Remedial Action Guidelines (RAGs) are useful – if conservative – default cleanup guidelines used by the Maine Department of Environmental Protection (DEP). DEP proposed changes in 2012, and has just proposed changes again, with a new deadline for comment. The RAGs are used for cleanup of contaminated property, addressing hazardous waste releases, and in the Voluntary Response Action Program (VRAP).

The RAGs will be of interest to anyone who has to address contaminants in the environment. These revised RAGs would incorporate new changes in worker exposure scenarios but continues to propose use of a “single-contaminant” approach, clarifying the application of the RAGs at many sites where there may in fact be more than one contaminant present. New Bureau Director Melanie Loyzim has also signaled that she wants to promote consistency across DEP programs, which should simplify application of the RAGs and reduce the ability to pick and choose among programs.

Among the other updates are higher background numbers for commonly encountered roadway run-off contaminants such as PAHs, new toxicological information from U.S. EPA, and revisions to the approach on vapor intrusion. The links to the relevant DEP documents can be found here. DEP continues to emphasize that the RAGs can be supplemented or replaced by a site-specific risk assessment, though that can be an additional cost.

DEP intends to hold a public meeting in Augusta on March 19 (yes, very short notice), but will accept written comments until April 10.

If you have questions, please contact Ken Gray (207-791-1212 or kgray@pierceatwood.com), Dixon Pike (207-791-1374 or dpike@pierceatwood.com) or Tom Doyle (207-791-1214 or

Maine Supreme Court Invalidates Permit for Saddleback Ridge Wind Project

Tue, 12 Mar 2013 12:00 AM PST

On March 5, 2013, the Maine Supreme Judicial Court (the “Law Court”) issued a decision in which it invalidated Saddleback Ridge Wind, LLC’s (“Saddleback”) permit to construct the Saddleback Ridge Wind Project (the “Project”). The decision raises concerns for any applicant for a Maine environmental or land use permit that standards may change in the middle, or even at the end, of its licensing process.

Saddleback filed its applications with the Maine Department of Environmental Protection (the “Department”) on October 26, 2010, seeking a permit to construct the Project in the towns of Carthage, Canton, and Dixfield. The applications described the development as a “12-turbine, 33 megawatt wind energy project and associated transmission line and substation.” Included in the applications were a noise impact study and a visual impact assessment. Opposing the applications were Friends of Maine’s Mountains, Friends of Saddleback Mountain, and several individuals (collectively, “Friends”).

After a public meeting and input from additional individuals and organizations both for and against the Project, the Department issued a permit to construct the Project on October 6, 2011. Friends then appealed the Department’s decision to the Board of Environmental Protection (the “Board”). On February 18, 2012, the Board issued an order affirming the Department’s approval of the permit application, and specifically affirmed the Department’s decision to apply the nighttime hourly sound level limit in effect at the time of the order, which was 45 dBA. In appealing the Board’s decision to the Law Court, Friends advanced three constitutional claims, and also argued that the Board abused its discretion when determining which nighttime sound level limit to apply to the applications. While it had little troubl

Under the Dome: Inside the Maine State House 3.8.13

Fri, 08 Mar 2013 12:00 AM PST

This Week's Higlights

Governor’s Veto Pledge Hangs Over Augusta
Appropriations Committee Schedules Public Hearing on Biennial Budget
Legislature Meets in Joint Convention to Hear State of Education Address
Workforce Development Committee to Hold Public Hearing
Congressman Michaud Considering a Run for the Blaine House

Governor’s Veto Pledge Hangs Over Augusta

Last week, Governor LePage appeared on a morning radio show and announced that he will veto all legislation that is sent to him until the Legislature enacts his proposal to rebid Maine’s liquor contract and use liquor revenues to pay the State’s debt to Maine hospitals. Obviously, this pronouncement has had major implications for work at the State House and there is plenty of speculation as to how this situation will eventually play out.

Democratic leaders have spoken out publically against the Governor’s pledge and held a press conference this week to say that the Governor is holding authorized bonds as “hostage” during this negotiation over payment of Maine’s hospital debt. The Governor’s Office responded this week with a we

DEP HazMat Specialist Pleads Guilty to Spill Records Destruction – IMPLICATIONS FOR THOSE AFFECTED BY SPILLS

Thu, 07 Mar 2013 12:00 AM PST

Former HazMat Specialist Jon P. Andrews, assigned to the Augusta Region of the Maine Department of Environmental Protection, has pleaded guilty to destroying three years of spill records on his final day on the job. The records destroyed included not only notes, but other information as well, including documents from other sources such as laboratory reports.

Andrews’ path of destruction covered spill records from 2010 to his last day at work for the DEP, March 6, 2012. Described as a “disgruntled employee” by the Assistant Attorney General prosecuting the case, Andrews reportedly dragged one or more 55-gallon plastic bags of documents out of the DEP building.

These records are often important for landowners, insurance claims, environmental assessments for due diligence in property transactions, and for tort claims for damages to property or personal injury, among other purposes. The list of hundreds of spills (by Department-assigned spill number and with identifying locations) is over sixteen pages long.

The DEP has decided to attempt to reconstruct records on a case-by-case basis as requests arrive at the Department. Mr. Andrews has not been requested to cooperate as part of his plea agreement, and so DEP staff in the Response Division is left to complete the task. In some cases, replacement records may be available, such as laboratory reports.

Pierce Atwood has obtained the list of spills for which records have been destroyed, and it may be possible to get other information. Clients who had spills during that period, and at which Mr. Andrews responded, may wish to obtain the list and determine if any spills at their facilities are implicated. It may also be wise to identify and obtain documents that may be available now, before they become unavailable with the passage of time, departure of knowledgeable state employees, or as re

Under the Dome: Inside the Maine State House

Fri, 01 Mar 2013 12:00 AM PST

Governor LePage to Veto All Bills until Plan to Pay Hospital Debt Enacted

On March 1st, Governor LePage appeared on a morning radio show and announced that he will veto all legislation that is sent to him until the Legislature enacts his proposal to rebid Maine’s liquor contract and use liquor revenues to pay the State’s debt to Maine hospitals. The Governor said without qualification that he will veto every bill, including proposals that he has submitted to the Legislature, until the Legislature sends him a plan to pay off Maine’s hospital debt. Legislative Democrats reacted through a prepared statement, calling this “political gamesmanship.”

Biennial Budget Deliberations to Begin Soon

This week, the Appropriations and Financial Affairs Committee received a number of briefings on matters related to the budget, including tax policy and Department of Health and Human Services programs. These briefings are designed to provide Committee members with background information that they can draw on during deliberations on the biennial budget. Public hearings on the biennial budget have not yet started but partisan posturing is already taking place. In a recent television appearance, House Republican Leader Ken Fredette said that a government shutdown was possible, if negotiations over the biennial budget broke down. Democrats were quick to cry foul,

Under the Dome: Inside the Maine State House 2.22.13

Fri, 22 Feb 2013 12:00 AM PST

This Week’s Highlights

Supplemental Budget Clears the Legislature
Legislature Enacts Emergency Legislation Regarding Concealed Weapons Permit Data
Effort to Legalize Marijuana Kicks Off at State House
Chief Justice Saufley Delivers State of the Judiciary Address
Hands Free Cell Phone Requirement While Driving Voted on in Committee

Supplemental Budget Clears the Legislature

On February 21st, the Legislature completed action on a $153 million supplemental budget bill designed to balance the State’s budget for the remainder of the current fiscal year, which ends June 30, 2013. The supplemental spending bill largely reflects what was initially proposed by Governor LePage, though the Committee did make some significant changes. The Governor’s initiatives that were rejected include a proposed elimination of the Drugs for the Elderly Program, a cap on General Assistance payments to municipalities, and a number of proposed health and human services cuts. Funding for the Maine Commission on Indigent Legal Services was reduced as proposed but language was added to the supplemental budget in Committee that would authorize the

Under the Dome: Inside the Maine State House 2.15.13

Fri, 15 Feb 2013 12:00 AM PST

This Week's Highlights:

Legislature Hitting Its Stride
Supplemental Budget Passes Appropriations Committee
Joint Select Committee Continues to Gather Information
Administration Discusses Energy Proposal
Bil l to Ban Handheld Cell Phones While Driving Heard in Committee

Legislature Hitting Its Stride

This week, the Legislature started to hit its stride. Committees are now meeting and regularly processing bills. At the close of this week, more than 500 bills have been printed. This is probably a little less than one third of the bills that will be printed during this year’s session. If this session is like sessions in the past, the Legislature will process a large number of non-controversial bills in the early months of the session, leaving the more controversial proposals for later in the session.

Supplemental Budget Passes Appropriations Committee

On February 13th, the Appropriations and Financial Affairs Co

Employers Subject to the Play or Pay Penalties under Health Care Reform

Thu, 14 Feb 2013 12:00 AM PST

By Joanne Pearson

Beginning in 2014, large employers are subject to one of two “shared responsibility” penalties under the Patient Protection and Affordable Care Act (“ACA”), commonly known as the play or pay penalties. The Internal Revenue Service recently issued proposed regulations and a series of Q&As providing guidance on these important provisions. This first in a series of alerts will help employers understand whether or not they are subject to the play or pay penalties. Additional alerts will discuss the penalties, how to avoid them, and a timeline of upcoming compliance obligations.

For the most part, the regulations follow previous informal guidance issued by the IRS, but also provide further explanations on some key issues. Employers should be aware that the proposed regulations include several “anti-abuse” provisions intended to crack down on employer manipulation of the workforce to avoid penalties. The preamble refers to the use of temporary employment agencies or the termination/rehire of employees as schemes the IRS has heard may be used to circumvent the penalty provisions. The final regulations are expected to address these and other perceived employer abuse practices.

Applicable Large Employer

The shared responsibility penalties apply only to “applicable large employers” that either fail to offer their employees (and dependents) the opportunity to enroll in minimum essential health coverage or offer coverage that is unaffordable. An “applicable large employer” is defined as an employer that employs, on average, at least 50 full-time employees during the preceding calendar year (including seasonal workers). Thus, employers will need to look at the 2013 workforce when the play or pay mandates come into effect in 2014

New HIPAA Rules Affect Business Associates and Their Subcontractors

Wed, 13 Feb 2013 12:00 AM PST

The new HIPAA rules issued by the Department of Health and Human Services have made substantial changes to the way in which covered entities (e.g., hospitals, health insurers, etc…) and their business associates (entities which perform services on behalf of covered entities involving health information) secure and interact with health information. One of the most significant and far-reaching of these changes relates to the way in which business associates and their subcontractors are regulated.

The 2009 Health Information Technology for Economic and Clinical Health Act (“HITECH Act”) obligated business associates to comply with much of the HIPAA rules that previously applied to covered entities only. With certain limited exceptions, the new HIPAA rules extend that reach by broadening the definition of “business associate” to include not only businesses that contract directly with covered entities, but also those that act as subcontractors to business associates and perform services on behalf of the business associate involving health information.

Therefore, subcontractors, and potentially their subcontractors “down the chain” (if they perform services involving health information), are themselves deemed to be business associates, and are statutorily obligated to comply with much of HIPPA’s rules. One of the difficulties of this particular broadening of the rules is that many subcontractors may not be aware that they are working with information covered by HIPAA, let alone that they are obligated to comply with HIPAA.

Covered entities and business associates alike should re-examine their relationships with subcontractors and ensure that they have obtained “satisfactory assurances” through written business associate agreements regarding the security and privacy of any health information available to the subcontractor. On the other side o

NLRB Gets Busy – Part 2

Tue, 12 Feb 2013 12:00 AM PST

By Charles S. Einsiedler, Jr. and Michelle Y. Bush

In January, we told you about recent activity by the National Labor Relations Board that overturned or departed from settled precedent. As promised, in Part 2 of this Alert series we summarize recent decisions where the Board focused on the non-unionized employer.

Ironically, on the same day the D.C. Circuit found all actions of the Board to be void because of the recess appointments of three of its members, the Board issued its most far-ranging decision, striking down four mainstream policies issued by DirecTV. As a result of this decision, every employer needs to review carefully all of its policies that restrict dissemination of Company information or which in any way restrict employee communications.

Board Invalidates Work Rules on Non-Disclosure, Non-Disparagement, and Restrictions on Media Contact

As we have reported in several alerts over the past year (click here and here), the Board has made no secret about its view that employers may violate the National Labor Relations Act by disciplining employees for comments made on social media or by placing limits on what employees can say on social media. Social media policies are not the only work rules that the Board is scrutinizing.

In late January, the Board found that four of DirecTV’s employment policies violated the Natio

EPA Finally Amends its Boiler MACT Regulations and Further Defines Fuels Versus Wastes

Tue, 12 Feb 2013 12:00 AM PST

Boiler owners beware – EPA has “finalized” its Boiler MACT, GACT, CISWI and NHSM rules and the compliance clocks have begun ticking. EPA expects the rules to affect about 200,000 boilers and that annualized compliance costs will be $ billions/year.

Background

EPA published its Boiler MACT (for major HAP sources), Boiler GACT (for minor or area HAP sources) and CISWI (incinerators) regulations in March 2011. At the same time, EPA also issued its Non-Hazardous Secondary Material (NHSM) regulation to define whether materials burned in units constitute a “fuel” (subjecting units to MACT/GACT standards for boilers) or a “waste” (subjecting units to the CISWI standards for incinerators). For a more complete discussion of these regulations as published in 2011, see our March 4, 2011, Alert here.

Immediately after publication, EPA announced that it would reconsider those regulations. After a lengthy reconsideration process, on December 23, 2011, EPA released proposed changes to the Boiler MACT/GACT, CISWI and NHSM rules. For a summary of the proposed changes, see our January 13, 2012, Alert here.

EPA published final amendments to the Boiler MACT rule on January 31, 2013; amendments to the Boiler GACT rule on February 1, 2013; amendments to the NHSM rule on February 7, 2013; amendments to the CISWI rule on February 7, 2013. Summarized below are the more significant recently published changes to the respective rules.

Boiler MACT

Compliance is required three years from the date of publication of the amendments (i.e., by January 31, 2016);
Sources may seek a one-year extension of co

NH Supreme Court Reverses Recent Decision Regarding Restrictions on Excavation Permitting

Tue, 12 Feb 2013 12:00 AM PST

In a November 16, 2012 alert, we discussed the New Hampshire Supreme Court’s November 9, 2012 decision in Town of Carroll v. Rines. That decision concluded that state law preempts certain municipal restrictions on excavation permitting. For the facts and background of the case, that alert can be found here:

http://www.pierceatwood.com/36018

Less than three months after its initial decision in Rines, the Court has reversed course. After granting a motion for reconsideration and withdrawing its original opinion on December 7, 2012, the Court issued a new opinion in Rines on January 30, 2013 reversing its earlier decision, and finding that the municipal regulations at issue are not preempted by state law.

Pre-Rines case law implies that municipal regulations are likely preempted by state law if those regulations impose substantive requirements on excavation activities that are permit exempt under NH RSA chapter 155-E. In its original decision, the Court concluded that Section VI of the Town’s zoning ordinance was preempted because it did not provide exceptions for excavations for highway purposes or for building construction, both of which are permit exempt under NH RSA chapter 155-E.

Upon reconsideration, the Court was persuaded by the Town’s argument that the plain language of RSA 155-E:2, IV(b) reflects the Legislature’s intent not to preempt the Town’s variance requirement for excavation for highway purposes. The Court pointed to the statute’s specific provision that excavation performed exclusively for certain highway projects “shall not be exempt from local zoning or other applicable ordinances, unless the [Department of Transportation or its agent is granted an exemption].” According to the Court, this language reveals that the Legislature only in