| 1 | 1 | | SENATE . . . . . . . . . . . . . . No. 2559 |
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| 2 | 2 | | The Commonwealth of Massachusetts |
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| 3 | 3 | | _______________ |
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| 4 | 4 | | In the One Hundred and Ninety-Third General Court |
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| 5 | 5 | | (2023-2024) |
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| 6 | 6 | | _______________ |
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| 7 | 7 | | SENATE, January 18, 2024. |
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| 8 | 8 | | The committee on Environment and Natural Resources to whom was referred the petition |
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| 9 | 9 | | (accompanied by bill, Senate, No. 495) of Anne M. Gobi, Ryan C. Fattman, Brian M. Ashe, |
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| 10 | 10 | | Angelo J. Puppolo, Jr. and other members of the General Court for legislation relative to |
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| 11 | 11 | | crumbling concrete foundations, reports the accompanying bill (Senate, No. 2559). |
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| 12 | 12 | | For the committee, |
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| 13 | 13 | | Rebecca L. Rausch 1 of 9 |
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| 14 | 14 | | FILED ON: 1/12/2024 |
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| 15 | 15 | | SENATE . . . . . . . . . . . . . . No. 2559 |
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| 16 | 16 | | The Commonwealth of Massachusetts |
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| 17 | 17 | | _______________ |
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| 18 | 18 | | In the One Hundred and Ninety-Third General Court |
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| 19 | 19 | | (2023-2024) |
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| 20 | 20 | | _______________ |
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| 21 | 21 | | An Act relative to crumbling concrete foundations. |
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| 22 | 22 | | Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority |
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| 23 | 23 | | of the same, as follows: |
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| 24 | 24 | | 1 SECTION 1. Section 3B of chapter 7 of the General Laws is hereby amended by |
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| 25 | 25 | | 2inserting after the words “twenty-one A” the following words:- , section sixteen of chapter |
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| 26 | 26 | | 3twenty-one B. |
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| 27 | 27 | | 4 SECTION 2. Section 97 of chapter 13 of the General Laws is hereby amended by |
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| 28 | 28 | | 5inserting at the end thereof the following words:- |
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| 29 | 29 | | 6 Said board shall require all licensed home inspectors who perform an inspection on a |
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| 30 | 30 | | 7residential home for the purpose of a sale or lease of the home to provide the potential buyer or |
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| 31 | 31 | | 8lessee information regarding the possible presence of pyrite or pyrrhotite in the concrete |
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| 32 | 32 | | 9foundation, prepared by the crumbling concrete relief agency established by section 2 of chapter |
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| 33 | 33 | | 1023B. |
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| 34 | 34 | | 11 SECTION 3. Section 2 of chapter 21B of the General Laws is hereby amended by |
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| 35 | 35 | | 12inserting the following words:- 2 of 9 |
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| 36 | 36 | | 13 “Aggregate”, granular materials such as gravel, sand and crushed rock that are combined |
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| 37 | 37 | | 14for a particular purpose |
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| 38 | 38 | | 15 “Certified geologist”, a professional geologist certified by the American Institute of |
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| 39 | 39 | | 16Professional Geologists. |
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| 40 | 40 | | 17 SECTION 4. Said chapter 21B is hereby further amended by adding the following new |
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| 41 | 41 | | 18section:- |
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| 42 | 42 | | 19 Section 16. (a) Any person seeking to mine, expand, excavate or otherwise operate a |
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| 43 | 43 | | 20quarry for the purpose of producing aggregate concrete for sale or use in foundations, structural |
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| 44 | 44 | | 21elements, or infrastructure such as roadways and bridges shall submit to the commissioner and |
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| 45 | 45 | | 22the state geologist an application for a license to conduct such quarry activity. Each license |
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| 46 | 46 | | 23application shall consist of: (i) a description of the geographic location of the quarry; (ii) a quarry |
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| 47 | 47 | | 24operations plan, including without limitation mining, processing, storage, and quality control |
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| 48 | 48 | | 25methods; (iii) a geological source report, consistent with the provisions of paragraph (b) of this |
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| 49 | 49 | | 26section; and (iv) the results of aggregate testing for the presence of pyrite or pyrrhotite, |
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| 50 | 50 | | 27consistent with the provisions of paragraph (c) of this section. Each license application shall be |
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| 51 | 51 | | 28accompanied by a fee in an amount to be determined by the commissioner. Fees received by the |
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| 52 | 52 | | 29department under this section shall be used to implement the provisions of this section, provided |
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| 53 | 53 | | 30that any surplus fee receipts shall be deposited into the crumbling concrete assistance fund |
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| 54 | 54 | | 31established in section 2RRRRR of chapter 29. |
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| 55 | 55 | | 32 (b) The geological source report required by this section shall be prepared by a certified |
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| 56 | 56 | | 33geologist in a form and manner prescribed by the commissioner, in consultation with the state |
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| 57 | 57 | | 34geologist and a representative nominated by the Massachusetts Concrete and Aggregate 3 of 9 |
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| 58 | 58 | | 35Producers, and shall include, without limitation: (i) a description of the characteristics of the |
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| 59 | 59 | | 36aggregate to be excavated at the subject quarry; (ii) a description of the products to be produced |
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| 60 | 60 | | 37by such quarry; (iii) a copy of the results of an inspection of face material and geologic log |
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| 61 | 61 | | 38analysis conducted within the preceding 60 days; and (iv) analyses of grab or core samples. |
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| 62 | 62 | | 39 (c) Aggregate testing to identify the presence of pyrite or pyrrhotite required by this |
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| 63 | 63 | | 40section shall include, without limitation, a total sulfur test to measure total sulfur content in a |
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| 64 | 64 | | 41representative sample. Aggregate testing shall be performed by a certified geologist in |
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| 65 | 65 | | 42accordance with applicable standards established by ASTM International or alternate standards |
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| 66 | 66 | | 43to be determined by the commissioner in consultation with the state geologist. |
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| 67 | 67 | | 44 (d) The commissioner or their designee shall review each license application submitted |
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| 68 | 68 | | 45pursuant to this section and notify each applicant whether or not the license has been approved, |
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| 69 | 69 | | 46as well as any conditions of operation, if applicable. If the license is denied, the notification shall |
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| 70 | 70 | | 47include the reason or reasons for denial. A license granted under this section shall be valid for |
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| 71 | 71 | | 48one year from the date of approval; provided, however, that a geological source report prepared |
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| 72 | 72 | | 49in accordance with paragraph (b) of this section shall be acceptable for a period of four years |
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| 73 | 73 | | 50from the date of preparation; and provided further, that aggregate test results demonstrating a |
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| 74 | 74 | | 51total sulfur content of less than one-tenth percent-by-mass shall be acceptable for a period of four |
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| 75 | 75 | | 52years from the date of testing. No license shall be approved under this section if the total sulfur |
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| 76 | 76 | | 53content is equal to or greater one percent-by-mass. If the total sulfur content is equal to or greater |
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| 77 | 77 | | 54than one-tenth percent-by-mass but less than one percent-by-mass, the license shall be denied |
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| 78 | 78 | | 55unless the state geologist, in their sole discretion, recommends approval to the commissioner |
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| 79 | 79 | | 56consistent with applicable ASTM International standards. The state geologist may require |
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| 80 | 80 | | 57additional testing or information to justify an approval recommendation. 4 of 9 |
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| 81 | 81 | | 58 (e) A person owning or operating a quarry subject to licensure pursuant to this section |
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| 82 | 82 | | 59shall maintain all records relevant to such licensure and quarry operation, including without |
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| 83 | 83 | | 60limitation a record of the aggregate source in concrete batches, for a period of not less than 30 |
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| 84 | 84 | | 61years. |
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| 85 | 85 | | 62 (f) A person owning or operating a quarry without a license as required by this section |
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| 86 | 86 | | 63shall be: (i) liable in perpetuity for property damage resulting from or related to the use or sale of |
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| 87 | 87 | | 64such aggregate product; and (ii) subject to a civil penalty in an amount to be determined by the |
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| 88 | 88 | | 65commissioner, not to exceed $500,000 in each instance. Amounts collected under this paragraph |
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| 89 | 89 | | 66shall be deposited into the crumbling concrete assistance fund established in section 2RRRRR of |
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| 90 | 90 | | 67chapter 29. |
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| 91 | 91 | | 68 (g) A contractor who uses aggregate concrete produced in violation of this section shall |
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| 92 | 92 | | 69be liable in perpetuity for property damage resulting from or related to the use or sale of such |
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| 93 | 93 | | 70aggregate product, unless the violation was intentionally concealed from the contractor. |
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| 94 | 94 | | 71 (h) The commissioner, in consultation with the state geologist, shall catalogue and |
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| 95 | 95 | | 72maintain the quarry data collected under this section. |
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| 96 | 96 | | 73 (i) Nothing in this section shall prohibit a municipality of the Commonwealth from |
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| 97 | 97 | | 74requiring permits for quarry operation or excavation. Municipalities may establish pyrite and |
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| 98 | 98 | | 75pyrrhotite presence restrictions more stringent than those set forth in this section. |
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| 99 | 99 | | 76 (j) Nothing in this section shall affect the operations of quarries producing aggregate for |
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| 100 | 100 | | 77purposes other than those described in paragraph (a). 5 of 9 |
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| 101 | 101 | | 78 (k) The department in consultation with the state geologist shall promulgate regulations |
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| 102 | 102 | | 79to implement the provisions of this section. |
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| 103 | 103 | | 80 SECTION 5. Section 2 of chapter 23B of the General Laws is hereby amended by |
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| 104 | 104 | | 81inserting at the end thereof the following new paragraph:- |
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| 105 | 105 | | 82 (c) There shall also be within the department a crumbling concrete relief agency |
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| 106 | 106 | | 83to provide assistance to owners of residential real property with concrete foundations that have |
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| 107 | 107 | | 84deteriorated due to the presence of pyrite or pyrrhotite. The agency shall be overseen by |
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| 108 | 108 | | 85an executive director who reports to the undersecretary. The executive director shall have the |
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| 109 | 109 | | 86authority to hire staff sufficient to meet the requirements and obligations of the agency. The |
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| 110 | 110 | | 87agency shall, without limitation: (a) provide information to the public regarding structurally |
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| 111 | 111 | | 88sound concrete and the dangers of pyrite and pyrrhotite; (b) publish a list of quarries licensed |
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| 112 | 112 | | 89pursuant to section 16 of chapter 21B and a searchable electronic database of all quarries |
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| 113 | 113 | | 90applying for such licensure, including aggregate and other testing results; and (c) administer the |
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| 114 | 114 | | 91crumbling concrete assistance fund established in section 2RRRRR of chapter 29, including |
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| 115 | 115 | | 92establishing eligibility requirements and implementing a process for impacted homeowners to |
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| 116 | 116 | | 93secure foundation repair and replacement funding from the fund. A decision on a request from an |
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| 117 | 117 | | 94impacted homeowner for such financial assistance shall be provided in writing to the homeowner |
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| 118 | 118 | | 95and shall include the information relied upon and the basis for such decision, including the |
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| 119 | 119 | | 96relevant eligibility and underwriting criteria. An impacted homeowner may request a review of |
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| 120 | 120 | | 97any decision by the agency relating to such homeowner not later than 30 days after the decision. |
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| 121 | 121 | | 98A final determination on such a request for review shall be provided in writing to the homeowner |
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| 122 | 122 | | 99not later than 30 days after receipt of the homeowner’s request, unless an extension is agreed to |
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| 123 | 123 | | 100by the homeowner. 6 of 9 |
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| 124 | 124 | | 101 SECTION 6. Chapter 29 of the General Laws is hereby amended by inserting after |
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| 125 | 125 | | 102section 2QQQQQ the following section:- |
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| 126 | 126 | | 103 Section 2RRRRR. (a) There shall be a Crumbling Concrete Assistance Fund. The fund |
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| 127 | 127 | | 104shall be expended to provide financial assistance to owners of residential real property for the |
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| 128 | 128 | | 105repair or replacement of concrete foundations of such property that have deteriorated due to the |
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| 129 | 129 | | 106presence of pyrite or pyrrhotite and to minimize any negative economic impacts on |
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| 130 | 130 | | 107municipalities in which such property are located. The crumbling concrete relief agency |
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| 131 | 131 | | 108established by section 2 of chapter 23B shall administer the fund and shall make expenditures |
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| 132 | 132 | | 109from the fund, without further appropriation. The agency shall seek to maximize available federal |
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| 133 | 133 | | 110reimbursements for money spent from the fund. |
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| 134 | 134 | | 111 The fund shall consist of: (i) revenue from appropriations or other money authorized by |
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| 135 | 135 | | 112the general court and specifically designated to be credited to the fund; (ii) interest earned on |
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| 136 | 136 | | 113such revenues; (iii) funds from public and private sources, including but not limited to gifts, |
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| 137 | 137 | | 114grants, donations, and settlements received by the commonwealth that are specifically designated |
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| 138 | 138 | | 115to be credited to the fund; (iv) federal funds paid to the commonwealth under paragraph (b) of |
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| 139 | 139 | | 116this section; (v) monies paid to the commonwealth under paragraph (c) of this section; (vi) |
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| 140 | 140 | | 117monies paid to the commonwealth under paragraph (d) of this section; and (vi) monies paid to the |
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| 141 | 141 | | 118commonwealth under paragraph (f) of section 16 of chapter 21B. Any bond proceeds deposited |
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| 142 | 142 | | 119into the fund shall be kept separate from any and all other funds deposited into the fund. Any |
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| 143 | 143 | | 120balance in the fund at the close of a fiscal year shall be available for expenditure in subsequent |
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| 144 | 144 | | 121fiscal years and shall not be transferred to any other fund or revert to the General Fund. 7 of 9 |
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| 145 | 145 | | 122 (b) The crumbling concrete relief agency established by section 2 of chapter 23B may |
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| 146 | 146 | | 123apply for, receive and deposit any federal funds, including but not limited to funds made |
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| 147 | 147 | | 124available by the United States Department of Housing and Urban Development Section 108 |
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| 148 | 148 | | 125Loan Guarantee program, into the fund established by this section. |
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| 149 | 149 | | 126 (c) Any entity licensed and engaged in the provision of homeowners insurance that has |
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| 150 | 150 | | 127denied or rejected claims for repair or replacement of foundations due to the presence of pyrite or |
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| 151 | 151 | | 128pyrrhotite at any time during the period beginning January 1, 2000, and continuing through |
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| 152 | 152 | | 129December 31, 2023, inclusive, shall be required to pay to the department of revenue an amount |
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| 153 | 153 | | 130equal to the total estimated or actual cost of repair or replacement, adjusted for inflation as |
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| 154 | 154 | | 131applicable, in each instance of a denial. No later than November 30, 2024, the attorney general |
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| 155 | 155 | | 132shall determine which insurers are subject to the provisions of this paragraph, including through |
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| 156 | 156 | | 133collection and review of claims denial and related documentation from impacted homeowners, |
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| 157 | 157 | | 134and shall provide a list of subject insurers to the department of revenue, the senate and house |
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| 158 | 158 | | 135committees on ways and means, the joint committee on environment and natural resources, and |
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| 159 | 159 | | 136the joint committee on state administration and regulatory oversight no later than December 31, |
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| 160 | 160 | | 1372024. The department of revenue shall notify subject insurers of penalties owed in writing no |
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| 161 | 161 | | 138later than March 30, 2025. Penalties owed under this paragraph shall be paid on or before June |
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| 162 | 162 | | 13930, 2025. Penalties collected under this paragraph shall be deposited into the fund established by |
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| 163 | 163 | | 140this section. An entity failing to pay a penalty a penalty owed under this paragraph shall have its |
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| 164 | 164 | | 141license revoked and shall not be eligible for a new or renewed license for a period of five years. |
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| 165 | 165 | | 142 (d) Annually not later than May 1, the commissioner of revenue shall assess any |
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| 166 | 166 | | 143entity licensed and engaged in the provision of homeowners insurance in the commonwealth an |
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| 167 | 167 | | 144amount not less than 3 per cent of the entity’s net profits from the provision of homeowners 8 of 9 |
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| 168 | 168 | | 145insurance in the commonwealth during the immediately preceding tax year. Penalties collected |
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| 169 | 169 | | 146under this paragraph shall be deposited into the fund established by this section. |
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| 170 | 170 | | 147 (e) Amounts issued from the fund to impacted homeowners for the repair or replacement |
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| 171 | 171 | | 148of concrete foundations that have deteriorated due to the presence of pyrrhotite shall be exempt |
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| 172 | 172 | | 149from taxation under chapter 62. |
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| 173 | 173 | | 150 (f) Annually not later than June 1, the crumbling concrete relief agency shall report on the |
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| 174 | 174 | | 151activities of the fund from the previous calendar year to the senate and house committees on ways |
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| 175 | 175 | | 152and means and the joint committee on environment and natural resources. |
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| 176 | 176 | | 153 (g) The crumbling concrete relief agency shall promulgate regulations or issue other |
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| 177 | 177 | | 154guidance for the expenditure of the funds under this section. |
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| 178 | 178 | | 155 SECTION 7. Chapter 59 of the General Laws is hereby amended by inserting after |
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| 179 | 179 | | 156section 59A the following section:- |
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| 180 | 180 | | 157 Section 59B. (a) Notwithstanding any general or special law to the contrary, an owner of |
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| 181 | 181 | | 158real property in the commonwealth may apply for a residential property tax abatement due to the |
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| 182 | 182 | | 159presence of pyrite or pyrrhotite minerals in the foundation. The presence of pyrite or pyrrhotite |
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| 183 | 183 | | 160shall be established by: (i) not less than 2 core samples from the foundation proving the presence |
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| 184 | 184 | | 161of pyrite or pyrrhotite; or (ii) a certified visual inspection conducted by a professional civil |
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| 185 | 185 | | 162engineer. The owner shall also provide a certified estimate of the cost to repair or replace the |
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| 186 | 186 | | 163foundation. Upon receipt of such documentation, a municipal board of assessors or equivalent |
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| 187 | 187 | | 164entity shall determine a value per square foot of the foundation and percentage of functional |
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| 188 | 188 | | 165obsolescence. If an abatement is sought on multiple properties within a municipality the board of |
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| 189 | 189 | | 166assessors may determine a general value per square foot of foundation and percentage of 9 of 9 |
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| 190 | 190 | | 167functional obsolescence to be used for all properties within said municipality. The board of |
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| 191 | 191 | | 168assessors shall use the value and percentage to calculate the reduction in assessment for each |
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| 192 | 192 | | 169affected property. Such reductions shall be effective until the foundation is repaired or replaced. |
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| 193 | 193 | | 170 SECTION 8. Chapter 143 of the General Laws is hereby amended by adding the |
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| 194 | 194 | | 171following section:- |
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| 195 | 195 | | 172 Section 110. Notwithstanding any general or special law to the contrary, fees for building |
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| 196 | 196 | | 173permits for work associated with crumbling concrete foundations replacement shall be waived. In |
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| 197 | 197 | | 174order to qualify for the waiver of fees, the applicant shall provide written documentation |
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| 198 | 198 | | 175showing that pyrite or pyrrhotite minerals are present in the foundation to be replaced. Nothing |
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| 199 | 199 | | 176in this section shall waive any of the permit application requirements, including, but not limited |
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| 200 | 200 | | 177to, holding public hearings, associated with a permit application. A determination to waive fees is |
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| 201 | 201 | | 178not a guarantee of the issuance of a permit. |
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| 202 | 202 | | 179 SECTION 9. Within 2 months of passage of this act, active quarries subject to licensure |
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| 203 | 203 | | 180under the provisions of section 4 of this act shall either submit a complete license application or |
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| 204 | 204 | | 181obtain interim approval from the state geologist to continue operations for a period of not more |
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| 205 | 205 | | 182than six months. Interim operations approvals shall not be renewed. |
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