HOUSE DOCKET, NO. 2668        FILED ON: 1/19/2023

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3035

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Sean Garballey

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act requiring state procurement of low-carbon building materials.

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PETITION OF:

HOUSE DOCKET, NO. 2668        FILED ON: 1/19/2023

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3035

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act requiring state procurement of low-carbon building materials.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Chapter 7C of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by adding the following section:-

Section 73. (a) For the purposes of this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Division”, the division of capital asset management and maintenance.

“Eligible material", the following materials, when used in the construction of an eligible project: (i) asphalt and asphalt mixtures; (ii) cement and concrete mixtures; (iii) glass; (iv) post-tension steel; (v) reinforcing steel; (vi) structural steel; (vii) wood structural elements; (viii) insulation; or (ix) other materials the division designates by rule after consultation with the technical advisory committee. 

"Eligible project", a building project for which a state agency issues a solicitation on or after January 1, 2024; provided, that “eligible project” shall not include any maintenance program for the upkeep of a capital facility or any road, highway, or bridge project.

“Emergency procurement”, a procurement conforming to the requirements of section 8 of chapter 30B.

“Global warming potential”, a numeric value that measures the total contribution to global warming from the emission of greenhouse gases, or the elimination of greenhouse gas sinks.

"Greenhouse gas'', any chemical or physical substance that is emitted into the air and that the department of environmental protection may reasonably anticipate will cause or contribute to climate change including, but not limited to, carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride.

“Technical advisory committee”, the committee described in subsection (h).

(b) By January 1, 2024, the division shall establish by policy a maximum acceptable global warming potential for each category of eligible materials used in an eligible project. The initial maximum acceptable global warming potential for each eligible material shall be set by the division after consultation with the technical advisory committee and shall be no higher than the 75th percentile of national industry global warming potential emissions for that material; provided that if sufficient data is available for a category of eligible material at the regional level, the division shall set a maximum acceptable global warming potential for that eligible material that is no higher than the 75th percentile of regional industry global warming potential emissions for that material. The division shall determine the 75th percentile of national industry global warming potential emissions for each material by consulting nationally or internationally recognized databases of environmental product declarations and may include transportation-related emissions as part of the global warming potential emissions. The division shall express the maximum acceptable global warming potential as a number that states the maximum acceptable global warming potential for each category of eligible materials. The global warming potential shall be provided in a manner that is consistent with criteria in an environmental product declaration. The division, in consultation with the technical advisory committee, may establish additional subcategories within each eligible material with distinct maximum acceptable global warming potential limits. The policy may permit maximum acceptable global warming potential for each eligible material category in the aggregate. In establishing a maximum acceptable global warming potential for each category of eligible materials used in an eligible project, the division may consult with any other relevant department or division of state government.

By January 1, 2026, and every two years thereafter, division shall review the maximum acceptable global warming potential for each category of eligible materials and may adjust the number for any eligible material to reflect industry conditions after consultation with the technical advisory committee. The division shall not adjust the number upward for any eligible material. In administering this section, the division shall strive to achieve a continuous reduction of greenhouse gas emissions over time.

(c) For any solicitation for a contract for the design of an eligible project, a state agency shall require the designer who is awarded the contract to include in project specifications when final construction documents are released, for each eligible material proposed to be used in the eligible project, a requirement for the contractor submit a current environmental product declaration, type III, as defined by the international organization for standardization’s standard 14025:2006, or a similarly robust life cycle assessment method chosen by the division that has uniform standards in data collection. The environmental product declaration shall demonstrate that the eligible materials proposed to be used in the eligible project meet the maximum acceptable global warming potential for each category of eligible materials.

(d) For any solicitation for a contract for an eligible project, a state agency shall specify the eligible materials that will be used in the project and reasonable minimum usage thresholds below which the requirements of this section shall not apply. The department, in consultation with the technical advisory committee, shall specify the threshold amount by rule. A state agency may include in a specification for solicitations for an eligible project a global warming potential for any eligible material that is lower than the maximum acceptable global warming potential for that material as determined pursuant to subsection (b) of this section.

(e) A contractor that is awarded a contract for an eligible project shall not install any eligible materials on the project until the contractor submits an environmental product declaration for that material pursuant to subsection (c) of this section. The environmental product declaration shall be deemed approved if it complies with the original specification required by subsection (c) of this section. If an environmental product declaration is not available for an eligible material, the contractor shall notify the division and install an alternative eligible material with an environmental product declaration.

(f) A state agency may waive the requirements of subsection (c) when it conducts an emergency procurement for eligible materials or when it determines that: (1) a relevant product category rule does not exist; (2) requiring an environmental product declaration will impermissibly reduce competition for public contracts or otherwise contravene the requirements of state procurement law; (3) requiring an environmental product declaration would unreasonably affect the state agency’s specifications or requirements for eligible materials or impair the state agency’s construction activities; (4) an environmental product declaration is not necessary to measure or quantify greenhouse gas emissions; (5) a product that meets the maximum acceptable global warming potential for a category of eligible materials is not reasonably priced or is not available on a reasonable basis at the time of design or construction; or (6) determines after consultation with the technical advisory committee that other considerations outweigh the need for requiring an environmental product declaration. Each state agency shall report the waivers it awards to the division.

(g) Beginning in 2024, and in each year thereafter, the division shall prepare a report for the general court, in consultation with the technical advisory committee, that includes the following information: (i) for the report prepared in 2024 only, a description of the method that division used to develop the maximum acceptable global warming potential for each category of eligible materials; (ii) what the division has learned about how to identify and quantify embodied carbon in building materials, including life cycle costs; (iii) any obstacles the division as well as bidding contractors have encountered in identifying and quantifying embodied carbon in building materials; and (iv) any other matters the division, in consultation with the technical advisory committee, deems relevant, material or important to highlight or recommend to the general court.

(h) The division, in conjunction with the department of energy resources, shall establish a technical advisory committee to assist the division with issues related to implementing the policy described in subsection (b). Members of the technical advisory committee shall include, but shall not be limited to, representatives from the division, the department of energy resources, the Massachusetts clean energy technology center, the department of environmental protection, construction firms engaged in construction and maintenance of eligible projects, suppliers of eligible materials, construction and material supplier industry associations, workers in construction or manufacturing industries, environmental organizations, and public institutions of higher education. The commissioner of the division shall serve as chair of the technical advisory committee. The division shall appoint a replacement for any vacancy on the technical advisory committee. A majority of the members of the technical advisory committee shall constitute a quorum. The technical advisory committee must meet at least four times within each calendar year at times and places specified by the call of the chair. Members of the technical advisory committee are not entitled to compensation or reimbursement for expenses and serve as volunteers on the technical advisory committee. The division and the department of energy resources shall provide staff support to the technical advisory committee.

The technical advisory committee shall: (1) recommend quantities of eligible materials below which the department need not require an environmental product declaration; (2) advise the division as needed to prepare the reports required under subsection (g); (3) advise and guide the department concerning: (i) the extent to which environmental product declarations or similarly robust life cycle assessment methods are available or are in development; (ii) the time within which a contractor must submit an environmental product declaration and any related information; (iii) how to properly analyze or interpret an environmental product declaration; (iv) the content of and criteria for devising, adopting and implementing the policy described in subsection (b); (v) potential changes to the design or implementation of the policy described in subsection (b) in light of technological advances and the need to maintain reasonable competition for public contracts; (vi) the maximum acceptable global warming potential for each eligible material; (vii) other matters the technical advisory committee deems necessary to achieve the goals of the program. The technical advisory committee may recommend to the division additional materials for designation as eligible materials.

SECTION 2. Chapter 81 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by adding the following section:-

Section 33. (a) For the purposes of this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Eligible material”, includes (1) concrete, including ready mix concrete, shotcrete, precast concrete and concrete masonry units; (2) asphalt paving mixtures; (3) steel, including rebar, reinforcing steel and structural steel, hot-rolled sections, hollow sections, plate steel and cold-formed steel; and (4) other materials the department designates by rule after consultation with the technical advisory committee. 

“Emergency procurement”, a procurement conforming to the requirements of section 8 of chapter 30B.

“Global warming potential”, a numeric value that measures the total contribution to global warming from the emission of greenhouse gases, or the elimination of greenhouse gas sinks.

"Greenhouse gas'', any chemical or physical substance that is emitted into the air and that the department of environmental protection may reasonably anticipate will cause or contribute to climate change including, but not limited to, carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride.

“Technical advisory committee”, the committee described in subsection (i).

(b) The department, not later than January 1, 2024, shall establish a program for greenhouse gas reduction that: (1) assesses the greenhouse gas emissions attributable to eligible materials the department uses in the department’s construction and maintenance activities for state highways; (2) conducts life cycle assessments of a selected set of the department’s construction and maintenance activities; and (3) devises strategies for reducing greenhouse gas emissions that shall include, but are not limited to: (i) improving pavement and bridge conditions; and (ii) establishing by policy a maximum acceptable global warming potential for each category of eligible material the department uses in the department’s construction and maintenance activities for state highways. In administering this section, the department shall strive to achieve a continuous reduction of greenhouse gas emissions over time.

In establishing the program, the department shall identify and disclose in any reports the department produces all relevant measurement difficulties, deficiencies in needed data, assumptions, uncertainties, technological limitations, costs associated with assessment and implementation, and any other relevant limitations of methodology, practice or implementation.

(c) In devising the strategies described in subsection (b), the department, at a minimum, shall consider and evaluate: (1) advancements in materials and engineering as applied to greenhouse gas emission reduction; (2) regional variability in the quality and durability of aggregates and other components of eligible materials; (3) the types and effects of fuels available for use in manufacturing, transporting and using eligible materials; (4) the quality and performance of the eligible materials; and (5) any other factors that the department, in consultation with the technical advisory committee, deems relevant and useful.

(d) The department may conduct the assessments and devise the strategies described in subsection (b) separately for each of the six highway districts, accounting for differences among the districts with respect to the availability of eligible materials, fuel and other necessary resources and the quantity of eligible materials the department uses or plans to use.

(e) In procuring eligible materials for the program described in subsection (b), the department shall require contractors to submit an environmental product declaration, type III, as defined by the international organization for standardization’s standard 14025:2006, or a similarly robust life cycle assessment method chosen by the division that has uniform standards in data collection, before the contractor installs the eligible materials, unless the department: (1) conducts an emergency procurement for the eligible materials; (2) determines that a relevant product category rule does not exist; (3) determines that requiring an environmental product declaration will impermissibly reduce competition for public contracts or otherwise contravene the requirements of state procurement law; (4) determines that requiring an environmental product declaration would unreasonably affect the department’s specifications or requirements for eligible materials or impair the department’s construction or maintenance activities; (5) determines that an environmental product declaration is not necessary to measure or quantify greenhouse gas emissions; or (6) determines after consultation with the technical advisory committee that other considerations outweigh the need for requiring an environmental product declaration or that a construction or maintenance activity would use less than a threshold amount of eligible materials. The department, in consultation with the technical advisory committee, shall specify the threshold amount by rule.

(f) Notwithstanding subsection (b), in procuring asphalt paving mixtures, the department may allow contractors to submit an environmental product declaration within a reasonable time after executing a public contract for constructing roads or acquiring materials or within the time required for such declaration or assessment to be prepared, but not later than the date on which the contractor completes performance of the public contract.

(g) The department may not use an environmental product declaration as a consideration in ranking or scoring a bid or proposal before January 1, 2025, but thereafter may consider an environmental product declaration if the department determines that doing so is beneficial and if, after consulting with the technical advisory committee, construction contractors, material suppliers and other stakeholders, the department devises a scoring methodology that ensures fairness among bidders.

(h) Each year by not later than December 31 the department shall file a report with the joint committee on transportation, the house and senate committees on global warming and climate change, and the house and senate committees on ways and means detailing the progress of the program. The department shall prepare each annual report in consultation with the technical advisory committee and the report, at a minimum, shall include: (1) a description of the department’s efforts to design and implement the program, an evaluation of the department’s success in reducing greenhouse gas emissions by means of environmental product declarations and recommendations as to whether to expand the program; and (2) any other matters the department, in consultation with the technical advisory committee, deems relevant, material or important to highlight or recommend to the general court.

(i) The department shall establish a technical advisory committee to assist the department with issues related to implementing the program described in subsection (b). Members of the technical advisory committee shall include, but shall not be limited to, representatives from the department of transportation, the department of energy resources, the Massachusetts clean energy technology center, the department of environmental protection, construction firms engaged in transportation construction and maintenance, suppliers of eligible materials, construction and material supplier industry associations, workers in construction or manufacturing industries, environmental organizations, and public institutions of higher education. The highway administrator shall serve as chair of the technical advisory committee. The department shall appoint a replacement for any vacancy on the technical advisory committee. A majority of the members of the technical advisory committee shall constitute a quorum. The technical advisory committee must meet at least four times within each calendar year at times and places specified by the call of the chair. Members of the technical advisory committee are not entitled to compensation or reimbursement for expenses and serve as volunteers on the technical advisory committee. The department shall provide staff support to the technical advisory committee.

The technical advisory committee shall: (1) recommend quantities of eligible materials below which the department need not require an environmental product declaration; (2) advise the department as needed to prepare the reports required under subsection (h); (3) advise and guide the department concerning: (i) the extent to which environmental product declarations or similarly robust life cycle assessment methods are available or are in development; (ii) which of the department’s construction and maintenance activities are appropriate for inclusion in the program described in subsection (b); (iii) the time within which a contractor must submit an environmental product declaration and any related information; (iv) how to properly analyze or interpret an environmental product declaration; (v) the content of and criteria for devising, adopting and implementing the strategies described in subsection (b); (vi) potential changes to the design or implementation of the program described in subsection (b) in light of technological advances and the need to maintain reasonable competition for public contracts; and (vii) other matters the technical advisory committee deems necessary to achieve the goals of the program. The technical advisory committee may recommend to the department additional materials for designation as eligible materials.

SECTION 3. The Massachusetts clean energy technology center established in section 2 of chapter 23J shall create a grant program to assist manufacturers of eligible materials, as defined in section 73 of chapter 7C and section 33 of chapter 81, in developing environmental product declarations, type III, as defined by the international organization for standardization’s standard 14025:2006.