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Massachusetts House Bill H3035

Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H3035 Compare Versions

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22 HOUSE DOCKET, NO. 2668 FILED ON: 1/19/2023
33 HOUSE . . . . . . . . . . . . . . . No. 3035
44 The Commonwealth of Massachusetts
55 _________________
66 PRESENTED BY:
77 Sean Garballey
88 _________________
99 To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
1010 Court assembled:
1111 The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
1212 An Act requiring state procurement of low-carbon building materials.
1313 _______________
1414 PETITION OF:
1515 NAME:DISTRICT/ADDRESS :DATE ADDED:Sean Garballey23rd Middlesex1/18/2023 1 of 12
1616 HOUSE DOCKET, NO. 2668 FILED ON: 1/19/2023
1717 HOUSE . . . . . . . . . . . . . . . No. 3035
1818 By Representative Garballey of Arlington, a petition (accompanied by bill, House, No. 3035) of
1919 Sean Garballey for legislation to require state procurement of low-carbon building materials.
2020 State Administration and Regulatory Oversight.
2121 The Commonwealth of Massachusetts
2222 _______________
2323 In the One Hundred and Ninety-Third General Court
2424 (2023-2024)
2525 _______________
2626 An Act requiring state procurement of low-carbon building materials.
2727 Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
2828 of the same, as follows:
2929 1 SECTION 1. Chapter 7C of the General Laws, as appearing in the 2020 Official Edition,
3030 2is hereby amended by adding the following section:-
3131 3 Section 73. (a) For the purposes of this section, the following words shall have the
3232 4following meanings unless the context clearly requires otherwise:
3333 5 “Division”, the division of capital asset management and maintenance.
3434 6 “Eligible material", the following materials, when used in the construction of an eligible
3535 7project: (i) asphalt and asphalt mixtures; (ii) cement and concrete mixtures; (iii) glass; (iv) post-
3636 8tension steel; (v) reinforcing steel; (vi) structural steel; (vii) wood structural elements; (viii)
3737 9insulation; or (ix) other materials the division designates by rule after consultation with the
3838 10technical advisory committee. 2 of 12
3939 11 "Eligible project", a building project for which a state agency issues a solicitation on or
4040 12after January 1, 2024; provided, that “eligible project” shall not include any maintenance
4141 13program for the upkeep of a capital facility or any road, highway, or bridge project.
4242 14 “Emergency procurement”, a procurement conforming to the requirements of section 8 of
4343 15chapter 30B.
4444 16 “Global warming potential”, a numeric value that measures the total contribution to
4545 17global warming from the emission of greenhouse gases, or the elimination of greenhouse gas
4646 18sinks.
4747 19 "Greenhouse gas'', any chemical or physical substance that is emitted into the air and that
4848 20the department of environmental protection may reasonably anticipate will cause or contribute to
4949 21climate change including, but not limited to, carbon dioxide, methane, nitrous oxide,
5050 22hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride.
5151 23 “Technical advisory committee”, the committee described in subsection (h).
5252 24 (b) By January 1, 2024, the division shall establish by policy a maximum acceptable
5353 25global warming potential for each category of eligible materials used in an eligible project. The
5454 26initial maximum acceptable global warming potential for each eligible material shall be set by
5555 27the division after consultation with the technical advisory committee and shall be no higher than
5656 28the 75th percentile of national industry global warming potential emissions for that material;
5757 29provided that if sufficient data is available for a category of eligible material at the regional level,
5858 30the division shall set a maximum acceptable global warming potential for that eligible material
5959 31that is no higher than the 75th percentile of regional industry global warming potential emissions
6060 32for that material. The division shall determine the 75th percentile of national industry global 3 of 12
6161 33warming potential emissions for each material by consulting nationally or internationally
6262 34recognized databases of environmental product declarations and may include transportation-
6363 35related emissions as part of the global warming potential emissions. The division shall express
6464 36the maximum acceptable global warming potential as a number that states the maximum
6565 37acceptable global warming potential for each category of eligible materials. The global warming
6666 38potential shall be provided in a manner that is consistent with criteria in an environmental
6767 39product declaration. The division, in consultation with the technical advisory committee, may
6868 40establish additional subcategories within each eligible material with distinct maximum
6969 41acceptable global warming potential limits. The policy may permit maximum acceptable global
7070 42warming potential for each eligible material category in the aggregate. In establishing a
7171 43maximum acceptable global warming potential for each category of eligible materials used in an
7272 44eligible project, the division may consult with any other relevant department or division of state
7373 45government.
7474 46 By January 1, 2026, and every two years thereafter, division shall review the maximum
7575 47acceptable global warming potential for each category of eligible materials and may adjust the
7676 48number for any eligible material to reflect industry conditions after consultation with the
7777 49technical advisory committee. The division shall not adjust the number upward for any eligible
7878 50material. In administering this section, the division shall strive to achieve a continuous reduction
7979 51of greenhouse gas emissions over time.
8080 52 (c) For any solicitation for a contract for the design of an eligible project, a state agency
8181 53shall require the designer who is awarded the contract to include in project specifications when
8282 54final construction documents are released, for each eligible material proposed to be used in the
8383 55eligible project, a requirement for the contractor submit a current environmental product 4 of 12
8484 56declaration, type III, as defined by the international organization for standardization’s standard
8585 5714025:2006, or a similarly robust life cycle assessment method chosen by the division that has
8686 58uniform standards in data collection. The environmental product declaration shall demonstrate
8787 59that the eligible materials proposed to be used in the eligible project meet the maximum
8888 60acceptable global warming potential for each category of eligible materials.
8989 61 (d) For any solicitation for a contract for an eligible project, a state agency shall specify
9090 62the eligible materials that will be used in the project and reasonable minimum usage thresholds
9191 63below which the requirements of this section shall not apply. The department, in consultation
9292 64with the technical advisory committee, shall specify the threshold amount by rule. A state agency
9393 65may include in a specification for solicitations for an eligible project a global warming potential
9494 66for any eligible material that is lower than the maximum acceptable global warming potential for
9595 67that material as determined pursuant to subsection (b) of this section.
9696 68 (e) A contractor that is awarded a contract for an eligible project shall not install any
9797 69eligible materials on the project until the contractor submits an environmental product
9898 70declaration for that material pursuant to subsection (c) of this section. The environmental product
9999 71declaration shall be deemed approved if it complies with the original specification required by
100100 72subsection (c) of this section. If an environmental product declaration is not available for an
101101 73eligible material, the contractor shall notify the division and install an alternative eligible
102102 74material with an environmental product declaration.
103103 75 (f) A state agency may waive the requirements of subsection (c) when it conducts an
104104 76emergency procurement for eligible materials or when it determines that: (1) a relevant product
105105 77category rule does not exist; (2) requiring an environmental product declaration will 5 of 12
106106 78impermissibly reduce competition for public contracts or otherwise contravene the requirements
107107 79of state procurement law; (3) requiring an environmental product declaration would
108108 80unreasonably affect the state agency’s specifications or requirements for eligible materials or
109109 81impair the state agency’s construction activities; (4) an environmental product declaration is not
110110 82necessary to measure or quantify greenhouse gas emissions; (5) a product that meets the
111111 83maximum acceptable global warming potential for a category of eligible materials is not
112112 84reasonably priced or is not available on a reasonable basis at the time of design or construction;
113113 85or (6) determines after consultation with the technical advisory committee that other
114114 86considerations outweigh the need for requiring an environmental product declaration. Each state
115115 87agency shall report the waivers it awards to the division.
116116 88 (g) Beginning in 2024, and in each year thereafter, the division shall prepare a report for
117117 89the general court, in consultation with the technical advisory committee, that includes the
118118 90following information: (i) for the report prepared in 2024 only, a description of the method that
119119 91division used to develop the maximum acceptable global warming potential for each category of
120120 92eligible materials; (ii) what the division has learned about how to identify and quantify embodied
121121 93carbon in building materials, including life cycle costs; (iii) any obstacles the division as well as
122122 94bidding contractors have encountered in identifying and quantifying embodied carbon in
123123 95building materials; and (iv) any other matters the division, in consultation with the technical
124124 96advisory committee, deems relevant, material or important to highlight or recommend to the
125125 97general court.
126126 98 (h) The division, in conjunction with the department of energy resources, shall establish a
127127 99technical advisory committee to assist the division with issues related to implementing the policy
128128 100described in subsection (b). Members of the technical advisory committee shall include, but shall 6 of 12
129129 101not be limited to, representatives from the division, the department of energy resources, the
130130 102Massachusetts clean energy technology center, the department of environmental protection,
131131 103construction firms engaged in construction and maintenance of eligible projects, suppliers of
132132 104eligible materials, construction and material supplier industry associations, workers in
133133 105construction or manufacturing industries, environmental organizations, and public institutions of
134134 106higher education. The commissioner of the division shall serve as chair of the technical advisory
135135 107committee. The division shall appoint a replacement for any vacancy on the technical advisory
136136 108committee. A majority of the members of the technical advisory committee shall constitute a
137137 109quorum. The technical advisory committee must meet at least four times within each calendar
138138 110year at times and places specified by the call of the chair. Members of the technical advisory
139139 111committee are not entitled to compensation or reimbursement for expenses and serve as
140140 112volunteers on the technical advisory committee. The division and the department of energy
141141 113resources shall provide staff support to the technical advisory committee.
142142 114 The technical advisory committee shall: (1) recommend quantities of eligible materials
143143 115below which the department need not require an environmental product declaration; (2) advise
144144 116the division as needed to prepare the reports required under subsection (g); (3) advise and guide
145145 117the department concerning: (i) the extent to which environmental product declarations or
146146 118similarly robust life cycle assessment methods are available or are in development; (ii) the time
147147 119within which a contractor must submit an environmental product declaration and any related
148148 120information; (iii) how to properly analyze or interpret an environmental product declaration; (iv)
149149 121the content of and criteria for devising, adopting and implementing the policy described in
150150 122subsection (b); (v) potential changes to the design or implementation of the policy described in
151151 123subsection (b) in light of technological advances and the need to maintain reasonable 7 of 12
152152 124competition for public contracts; (vi) the maximum acceptable global warming potential for each
153153 125eligible material; (vii) other matters the technical advisory committee deems necessary to
154154 126achieve the goals of the program. The technical advisory committee may recommend to the
155155 127division additional materials for designation as eligible materials.
156156 128 SECTION 2. Chapter 81 of the General Laws, as appearing in the 2020 Official Edition,
157157 129is hereby amended by adding the following section:-
158158 130 Section 33. (a) For the purposes of this section, the following words shall have the
159159 131following meanings unless the context clearly requires otherwise:
160160 132 “Eligible material”, includes (1) concrete, including ready mix concrete, shotcrete,
161161 133precast concrete and concrete masonry units; (2) asphalt paving mixtures; (3) steel, including
162162 134rebar, reinforcing steel and structural steel, hot-rolled sections, hollow sections, plate steel and
163163 135cold-formed steel; and (4) other materials the department designates by rule after consultation
164164 136with the technical advisory committee.
165165 137 “Emergency procurement”, a procurement conforming to the requirements of section 8 of
166166 138chapter 30B.
167167 139 “Global warming potential”, a numeric value that measures the total contribution to
168168 140global warming from the emission of greenhouse gases, or the elimination of greenhouse gas
169169 141sinks.
170170 142 "Greenhouse gas'', any chemical or physical substance that is emitted into the air and that
171171 143the department of environmental protection may reasonably anticipate will cause or contribute to 8 of 12
172172 144climate change including, but not limited to, carbon dioxide, methane, nitrous oxide,
173173 145hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride.
174174 146 “Technical advisory committee”, the committee described in subsection (i).
175175 147 (b) The department, not later than January 1, 2024, shall establish a program for
176176 148greenhouse gas reduction that: (1) assesses the greenhouse gas emissions attributable to eligible
177177 149materials the department uses in the department’s construction and maintenance activities for
178178 150state highways; (2) conducts life cycle assessments of a selected set of the department’s
179179 151construction and maintenance activities; and (3) devises strategies for reducing greenhouse gas
180180 152emissions that shall include, but are not limited to: (i) improving pavement and bridge
181181 153conditions; and (ii) establishing by policy a maximum acceptable global warming potential for
182182 154each category of eligible material the department uses in the department’s construction and
183183 155maintenance activities for state highways. In administering this section, the department shall
184184 156strive to achieve a continuous reduction of greenhouse gas emissions over time.
185185 157 In establishing the program, the department shall identify and disclose in any reports the
186186 158department produces all relevant measurement difficulties, deficiencies in needed data,
187187 159assumptions, uncertainties, technological limitations, costs associated with assessment and
188188 160implementation, and any other relevant limitations of methodology, practice or implementation.
189189 161 (c) In devising the strategies described in subsection (b), the department, at a minimum,
190190 162shall consider and evaluate: (1) advancements in materials and engineering as applied to
191191 163greenhouse gas emission reduction; (2) regional variability in the quality and durability of
192192 164aggregates and other components of eligible materials; (3) the types and effects of fuels available
193193 165for use in manufacturing, transporting and using eligible materials; (4) the quality and 9 of 12
194194 166performance of the eligible materials; and (5) any other factors that the department, in
195195 167consultation with the technical advisory committee, deems relevant and useful.
196196 168 (d) The department may conduct the assessments and devise the strategies described in
197197 169subsection (b) separately for each of the six highway districts, accounting for differences among
198198 170the districts with respect to the availability of eligible materials, fuel and other necessary
199199 171resources and the quantity of eligible materials the department uses or plans to use.
200200 172 (e) In procuring eligible materials for the program described in subsection (b), the
201201 173department shall require contractors to submit an environmental product declaration, type III, as
202202 174defined by the international organization for standardization’s standard 14025:2006, or a
203203 175similarly robust life cycle assessment method chosen by the division that has uniform standards
204204 176in data collection, before the contractor installs the eligible materials, unless the department: (1)
205205 177conducts an emergency procurement for the eligible materials; (2) determines that a relevant
206206 178product category rule does not exist; (3) determines that requiring an environmental product
207207 179declaration will impermissibly reduce competition for public contracts or otherwise contravene
208208 180the requirements of state procurement law; (4) determines that requiring an environmental
209209 181product declaration would unreasonably affect the department’s specifications or requirements
210210 182for eligible materials or impair the department’s construction or maintenance activities; (5)
211211 183determines that an environmental product declaration is not necessary to measure or quantify
212212 184greenhouse gas emissions; or (6) determines after consultation with the technical advisory
213213 185committee that other considerations outweigh the need for requiring an environmental product
214214 186declaration or that a construction or maintenance activity would use less than a threshold amount
215215 187of eligible materials. The department, in consultation with the technical advisory committee,
216216 188shall specify the threshold amount by rule. 10 of 12
217217 189 (f) Notwithstanding subsection (b), in procuring asphalt paving mixtures, the department
218218 190may allow contractors to submit an environmental product declaration within a reasonable time
219219 191after executing a public contract for constructing roads or acquiring materials or within the time
220220 192required for such declaration or assessment to be prepared, but not later than the date on which
221221 193the contractor completes performance of the public contract.
222222 194 (g) The department may not use an environmental product declaration as a consideration
223223 195in ranking or scoring a bid or proposal before January 1, 2025, but thereafter may consider an
224224 196environmental product declaration if the department determines that doing so is beneficial and if,
225225 197after consulting with the technical advisory committee, construction contractors, material
226226 198suppliers and other stakeholders, the department devises a scoring methodology that ensures
227227 199fairness among bidders.
228228 200 (h) Each year by not later than December 31 the department shall file a report with the
229229 201joint committee on transportation, the house and senate committees on global warming and
230230 202climate change, and the house and senate committees on ways and means detailing the progress
231231 203of the program. The department shall prepare each annual report in consultation with the
232232 204technical advisory committee and the report, at a minimum, shall include: (1) a description of the
233233 205department’s efforts to design and implement the program, an evaluation of the department’s
234234 206success in reducing greenhouse gas emissions by means of environmental product declarations
235235 207and recommendations as to whether to expand the program; and (2) any other matters the
236236 208department, in consultation with the technical advisory committee, deems relevant, material or
237237 209important to highlight or recommend to the general court. 11 of 12
238238 210 (i) The department shall establish a technical advisory committee to assist the department
239239 211with issues related to implementing the program described in subsection (b). Members of the
240240 212technical advisory committee shall include, but shall not be limited to, representatives from the
241241 213department of transportation, the department of energy resources, the Massachusetts clean
242242 214energy technology center, the department of environmental protection, construction firms
243243 215engaged in transportation construction and maintenance, suppliers of eligible materials,
244244 216construction and material supplier industry associations, workers in construction or
245245 217manufacturing industries, environmental organizations, and public institutions of higher
246246 218education. The highway administrator shall serve as chair of the technical advisory committee.
247247 219The department shall appoint a replacement for any vacancy on the technical advisory
248248 220committee. A majority of the members of the technical advisory committee shall constitute a
249249 221quorum. The technical advisory committee must meet at least four times within each calendar
250250 222year at times and places specified by the call of the chair. Members of the technical advisory
251251 223committee are not entitled to compensation or reimbursement for expenses and serve as
252252 224volunteers on the technical advisory committee. The department shall provide staff support to the
253253 225technical advisory committee.
254254 226 The technical advisory committee shall: (1) recommend quantities of eligible materials
255255 227below which the department need not require an environmental product declaration; (2) advise
256256 228the department as needed to prepare the reports required under subsection (h); (3) advise and
257257 229guide the department concerning: (i) the extent to which environmental product declarations or
258258 230similarly robust life cycle assessment methods are available or are in development; (ii) which of
259259 231the department’s construction and maintenance activities are appropriate for inclusion in the
260260 232program described in subsection (b); (iii) the time within which a contractor must submit an 12 of 12
261261 233environmental product declaration and any related information; (iv) how to properly analyze or
262262 234interpret an environmental product declaration; (v) the content of and criteria for devising,
263263 235adopting and implementing the strategies described in subsection (b); (vi) potential changes to
264264 236the design or implementation of the program described in subsection (b) in light of technological
265265 237advances and the need to maintain reasonable competition for public contracts; and (vii) other
266266 238matters the technical advisory committee deems necessary to achieve the goals of the program.
267267 239The technical advisory committee may recommend to the department additional materials for
268268 240designation as eligible materials.
269269 241 SECTION 3. The Massachusetts clean energy technology center established in section 2
270270 242of chapter 23J shall create a grant program to assist manufacturers of eligible materials, as
271271 243defined in section 73 of chapter 7C and section 33 of chapter 81, in developing environmental
272272 244product declarations, type III, as defined by the international organization for standardization’s
273273 245standard 14025:2006.