S T A T E O F N E W Y O R K
________________________________________________________________________
2591
2021-2022 Regular Sessions
I N A S S E M B L Y
January 19, 2021
___________
Introduced by M. of A. CARROLL, DICKENS, RODRIGUEZ, GOTTFRIED, ABINANTI,
GLICK, STIRPE, FAHY, BARRON, DAVILA, NIOU, L. ROSENTHAL, EPSTEIN --
Multi-Sponsored by -- M. of A. COOK, SIMON -- read once and referred
to the Committee on Governmental Operations
AN ACT to amend the state finance law and the tax law, in relation to
implementing "The New York State Low Embodied Carbon Concrete Leader-
ship Act"
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. This act shall be known and may be cited as "The New York
State Low Embodied Carbon Concrete Leadership Act".
§ 2. Section 165 of the state finance law is amended by adding a new
subdivision 9 to read as follows:
9. SPECIAL PROVISIONS FOR PURCHASE OF CONCRETE.
A. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE
THE FOLLOWING MEANINGS:
(I) "CONCRETE" SHALL MEAN STRUCTURAL AND NON-STRUCTURAL MASONRY, PRE-
CAST AND READY-MIX CONCRETE BUILDING PRODUCTS.
(II) "CONCRETE MIX" SHALL MEAN A SPECIFIC COMBINATION OF COMPONENTS,
INCLUDING WATER, CEMENT, AGGREGATE AND OTHER MATERIALS WHICH ARE USED TO
PRODUCE CONCRETE PRODUCTS. THE STRUCTURAL PROPERTIES OF CONCRETE MIXES
VARY BY STRENGTH, DURABILITY, CURING TIME AND OTHER PERFORMANCE CHARAC-
TERISTICS AS A RESULT OF THE DEFINED PROPORTIONS OF THEIR COMPONENTS AND
THE METHODS USED IN THEIR PRODUCTION.
(III) "PORTLAND CEMENT" SHALL MEAN HYDRAULIC CEMENT PRODUCED BY
PULVERIZING CLINKERS IN COMBINATION WITH ONE OR MORE OF THE FORMS OF
CALCIUM SULFATE.
(IV) "EMBODIED CARBON EMISSIONS" SHALL MEAN CARBON EMISSIONS GENERATED
AS A RESULT OF A MATERIAL'S PRODUCTION, INCLUDING MINING, REFINING, AND
SHIPPING.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01244-03-1
A. 2591 2
(V) "GLOBAL WARMING POTENTIAL" (GWP) SHALL MEAN A NUMERIC VALUE THAT
MEASURES THE TOTAL CONTRIBUTION TO GLOBAL WARMING FROM THE EMISSION OF
GREENHOUSE GASES, OR THE ELIMINATION OF GREENHOUSE GAS SINKS, THAT
RESULTS FROM THE PRODUCTION AND/OR UTILIZATION OF A SPECIFIC PRODUCT OR
SERVICE.
(VI) "CARBON DIOXIDE EQUIVALENT" (CO2E) SHALL MEAN A MEASURE USED TO
COMPARE THE EMISSIONS FROM VARIOUS GREENHOUSE GASES BASED UPON THEIR
GLOBAL WARMING POTENTIAL.
(VII) "LOW EMBODIED CARBON CONCRETE" SHALL MEAN CONCRETE THAT HAS BEEN
VERIFIED TO EMBODY LOWER CARBON EMISSIONS, AS MEASURED BY A GWP METRIC,
COMPARED TO THE BASELINE EMBODIED CARBON EMISSIONS OF CONVENTIONAL
CONCRETE MADE WITH PORTLAND CEMENT. LOW EMBODIED CARBON EMISSIONS CAN BE
ACHIEVED THROUGH DIVERSE METHODS AND PROCESSES INCLUDING, BUT NOT LIMIT-
ED TO: (A) HIGHER ENERGY EFFICIENCY AT THE LEVEL OF THE CONCRETE AND/OR
CEMENT PLANT; (B) LOW CARBON FUEL SUBSTITUTION AT THE LEVEL OF THE
CONCRETE AND/OR CEMENT PLANT; (C) LOCAL PRODUCTION RESULTING IN REDUCED
EMISSIONS FROM TRANSPORTATION; (D) THE REDUCTION OF CLINKER CONTENT IN
THE CEMENT COMPONENT OF CONCRETE, OR THE SUBSTITUTION OF CLINKER CONTENT
WITH LOWER CARBON-INTENSIVE ALTERNATIVE MATERIALS LIKE SUPPLEMENTARY
CEMENTITIOUS MATERIALS (SCMS) SUCH AS GROUND GRANULATED BLAST FURNACE
SLAG, FLY ASH, AND RECYCLED GROUND-GLASS POZZOLAN; (E) THE CAPTURE AND
STORAGE OF POINT SOURCE CO2 EMISSIONS DURING THE CEMENT AND CONCRETE
PRODUCTION PROCESS; OR (F) THE UTILIZATION AND MINERALIZATION OF CARBON
IN CONCRETE MATERIALS.
(VIII) "ENVIRONMENTAL PRODUCT DECLARATION" (EPD) SHALL MEAN PRODUCT
SPECIFIC TYPE III EPDS THAT CONFORM TO ISO STANDARD 14025 AND ENABLE THE
NUMERIC GWP AND ENVIRONMENTAL IMPACT COMPARISONS BETWEEN CONCRETE MIXES
FULFILLING THE SAME FUNCTIONS.
(IX) "CARBON CAPTURE, UTILIZATION AND/OR STORAGE" (CCUS) SHALL MEAN
METHODS AND TECHNOLOGIES TO REMOVE CO2 FROM THE FLUE GAS AND FROM THE
ATMOSPHERE, FOLLOWED BY RECYCLING THE CO2 FOR UTILIZATION AND/OR DETER-
MINING SAFE AND PERMANENT STORAGE OPTIONS FOR CAPTURED CO2.
(X) "CONCRETE DELIVERY MILES" (CDM) SHALL MEAN THE DISTANCE IN MILES
CONCRETE MIXER TRUCKS TRAVEL FROM THE PRODUCTION FACILITY TO THE JOB
SITE PLUS RETURN TRAVEL.
(XI) "LOW EMBODIED CARBON DISCOUNT RATE" SHALL MEAN A RATE, SET BY THE
COMMISSIONER, APPLIED TO ONE OR MORE OF THE BIDS FOR SUPPLY OF CONCRETE
AND BASED ON THE GWP DERIVED FROM CERTIFIED EPD ANALYSIS OF EACH BID
RELATIVE TO ALL COMPETITIVE BIDS. ESTIMATED CO2E RESULTING FROM PROJECT
CDM SHALL BE ASSESSED IN ADDITION TO GWP DERIVED FROM EPD ANALYSIS AND
FACTORED INTO THE DISCOUNT RATE.
(XII) "LOW EMBODIED CARBON CONCRETE BREAKTHROUGH" SHALL MEAN ANY TECH-
NOLOGY, METHOD, OR PRODUCT, INCLUDING BUT NOT LIMITED TO ONE THAT INCOR-
PORATES QUALIFIED CARBON CAPTURE UTILIZATION AND STORAGE, THAT ONCE
FULLY COMMERCIALIZED AND IMPLEMENTED HAS THE POTENTIAL TO SIGNIFICANTLY
REDUCE THE GWP OF CONCRETE.
(XIII) "LOW EMBODIED CARBON CONCRETE BREAKTHROUGH DISCOUNT RATE" SHALL
MEAN A DISCOUNT, SET BY THE COMMISSIONER, APPLIED TO ONE OR MORE OF THE
BIDS FOR SUPPLY OF CONCRETE AND BASED ON THE INCORPORATION OF QUALIFIED
LOW EMBODIED CARBON CONCRETE BREAKTHROUGHS.
(XIV) "NET ZERO CO2 EMISSIONS" SHALL MEAN A STATE WHEREBY THE TOTAL
AMOUNT OF CO2 UTILIZED AND/OR CAPTURED DURING THE CONCRETE PRODUCTION
PROCESS AND/OR MINERALIZED IN CONCRETE MATERIALS ARE EQUAL TO THE AMOUNT
OF CO2 EMISSIONS RELEASED DURING THE PRODUCTION AND UTILIZATION OF THAT
CONCRETE.
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(XV) "NET NEGATIVE CO2 EMISSIONS" SHALL MEAN A STATE WHEREBY THE
AMOUNT OF CO2 UTILIZED AND/OR CAPTURED DURING THE CONCRETE PRODUCTION
PROCESS AND/OR MINERALIZED IN CONCRETE MATERIALS ARE GREATER THAN THE
AMOUNT OF CO2 EMISSIONS RELEASED DURING THE PRODUCTION AND UTILIZATION
OF THAT CONCRETE.
B. WHEN LETTING CONTRACTS FOR THE PURCHASE OF FIFTY CUBIC YARDS OR
MORE OF CONCRETE ON BEHALF OF FACILITIES, TRANSPORTATION AUTHORITIES AND
INSTITUTIONS OF THE STATE, SOLICITATION SPECIFICATIONS OF THE OFFICE OF
GENERAL SERVICES AND ANY OTHER AGENCY, DEPARTMENT, OFFICE, BOARD OR
COMMISSION SHALL APPLY A LOW EMBODIED CARBON CONCRETE PRICE DISCOUNT
RATE TO OFFERER BIDS FOR THE PURPOSES OF BID ASSESSMENT AND SELECTION.
DISCOUNT RATES WILL BE APPLIED TO OFFERER BID PRICES ON THE BASIS OF THE
GWP VALUES FOR CONCRETE PRODUCTS SPECIFIED IN OFFERER BIDS. GWP VALUES
SHALL BE SUBMITTED BY OFFERERS IN THE FORM OF CERTIFIED EPDS. IN ADDI-
TION TO GWP VALUES QUANTIFIED IN EPD SUBMISSIONS, THE EFFECT OF CDM AND
THE FUEL USAGE/EMISSIONS FACTOR THEREOF SHALL BE CONSIDERED. THE CO2E
EMISSIONS QUANTIFIED FOR CDM SHALL BE INCORPORATED INTO THE GWP VALUES
QUANTIFIED IN EPD. A PRICE DISCOUNT NOT EXCEEDING FIVE PERCENT SHALL BE
APPLIED TO TOP PERFORMING BIDS THAT CERTIFY THE LOWEST GWP VALUES VIA
EPD SUBMISSION. THE COMMISSIONER SHALL ESTABLISH RULES AND GUIDELINES
WHEREBY SPECIFIC PRICE DISCOUNT RATES SHALL BE DETERMINED AND APPLIED TO
BIDS BASED ON GWP PERFORMANCE.
C. FOR BIDS THAT HAVE BEEN CERTIFIED BY THE COMMISSIONER TO INCORPO-
RATE LOW EMBODIED CARBON CONCRETE BREAKTHROUGH PRODUCTS AND TECHNOLO-
GIES, THE COMMISSIONER SHALL ESTABLISH A SUPPLEMENTAL PRICE DISCOUNT
RATE TO BE APPLIED IN ADDITION TO THE LOW EMBODIED CARBON CONCRETE
DISCOUNT RATE DEFINED IN PARAGRAPH B OF THIS SUBDIVISION. BIDS THAT
RECEIVE PRICE DISCOUNTS BASED ON GWP PERFORMANCE AND WHICH INCORPORATE
QUALIFIED LOW EMBODIED CARBON CONCRETE BREAKTHROUGH PRODUCTS AND TECH-
NOLOGIES WILL BE GRANTED A SUPPLEMENTAL PRICE DISCOUNT FOR BID ASSESS-
MENT AND SELECTION PURPOSES THAT SHALL NOT EXCEED THREE PERCENT. THE
LOW EMBODIED CARBON CONCRETE BREAKTHROUGH DISCOUNT RATE SHALL BE ADDED
TO THE LOW EMBODIED CARBON DISCOUNT RATE AND APPLIED TO THE BASE BID
PRICE.
D. THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY IS
DIRECTED TO ESTABLISH CRITERIA FOR QUALIFYING A TECHNOLOGY, METHOD, OR
PRODUCT AS A LOW EMBODIED CARBON CONCRETE BREAKTHROUGH, INCLUDING: (I)
THE MINIMUM THRESHOLD FOR WHAT CONSTITUTES A SIGNIFICANT CONCRETE GWP
REDUCTION, RELATIVE TO NET EMISSIONS REDUCTION TARGETS ESTABLISHED IN
CHAPTER ONE HUNDRED SIX OF THE LAWS OF TWO THOUSAND NINETEEN; AND (II)
APPROPRIATE STAGE OF MARKET ADOPTION AND PENETRATION. THE COMMISSIONER
SHALL EVALUATE POTENTIAL NEW LOW CARBON CONCRETE BREAKTHROUGH TECHNOLO-
GIES, METHODS, AND PRODUCTS AND MAINTAIN AN ANNUALLY UPDATED DIRECTORY
OF QUALIFIED LOW EMBODIED CARBON CONCRETE BREAKTHROUGH TECHNOLOGIES,
METHODS, AND PRODUCTS.
E. FOR BID OPPORTUNITIES THAT INCLUDE MULTIPLE CONCRETE MIXES THE GWP
OF ALL MIXES WILL BE PROPORTIONALLY WEIGHTED INTO A SINGLE GWP SCORE
THAT WILL SERVE AS THE BASIS FOR ASSESSMENT AND SELECTION.
F. FOR STATE-FUNDED CONSTRUCTION PROJECTS THAT WILL BE COMPLETED BY
PRIVATE CONTRACTING FIRMS THAT HAVE BEEN CONTRACTED BY THE STATE, AND
FOR WHICH CONCRETE WILL BE PROCURED FOR THE PROJECT, SUCH CONTRACTORS
SHALL COMPLY WITH THE SELECTION STANDARDS AND RULES STIPULATED IN THIS
PARAGRAPH WHEN SUBCONTRACTING SERVICES FROM CONCRETE PROVIDERS. SUCH
CONTRACTORS SHALL REPORT EPD DOCUMENTATION INCLUDED IN SUBCONTRACT BIDS
THAT DEMONSTRATE COMPLIANCE WITH THE STANDARDS AND RULES. THE COMMIS-
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SIONER SHALL INSTITUTE AND ISSUE GUIDELINES PERTAINING TO PENALTIES FOR
NON-COMPLIANCE BY SUCH CONTRACTORS.
G. THE COMMISSIONER SHALL ISSUE REGULATIONS FOR THE IMPLEMENTATION OF
THIS SUBDIVISION, INCLUDING BUT NOT LIMITED TO: (I) ESTABLISHING GUIDE-
LINES THAT WILL ASSIST AGENCIES IN DETERMINING WHICH CONTRACTS MEET THE
REQUIREMENTS IN PARAGRAPH B OF THIS SUBDIVISION; (II) PUBLISHING SUCH
PURCHASING GUIDELINES ON THE OFFICE OF GENERAL SERVICES' WEBSITE,
DISSEMINATING SUCH GUIDELINES TO AGENCIES AND TRAINING CONTRACTING
PERSONNEL ON IMPLEMENTING SUCH GUIDELINES; AND (III) PROVIDING FOR MONI-
TORING OF IMPLEMENTATION.
H. THE COMMISSIONER SHALL COMPLETE AND SUBMIT TO THE LEGISLATURE AN
ANNUAL COST-BENEFIT ANALYSIS OF THE LOW EMBODIED CARBON CONCRETE
PROCUREMENT STANDARD, IN ORDER TO QUANTIFY THE BUDGETARY IMPACT OF THE
PROGRAM RELATIVE TO THE LATTER'S CARBON REDUCTION IMPACT AND RECOMMEND
ANY ADDITIONAL INCENTIVES OR REQUIREMENTS THAT MAY BE NECESSARY TO HELP
THE STATE MEET ITS CLEAN ENERGY GOALS ESTABLISHED IN CHAPTER ONE HUNDRED
SIX OF THE LAWS OF TWO THOUSAND NINETEEN.
§ 3. Section 606 of the tax law is amended by adding a new subsection
(kkk) to read as follows:
(KKK) THE ENVIRONMENTAL PRODUCT DECLARATION TAX CREDIT. (A) DEFI-
NITIONS. FOR THE PURPOSES OF THIS SECTION:
(I) "LOW EMBODIED CARBON CONCRETE" SHALL MEAN CONCRETE THAT HAS BEEN
VERIFIED BY ENVIRONMENTAL PRODUCT DECLARATION TO EMBODY LOWER CARBON
EMISSIONS, AS MEASURED BY A GLOBAL WARMING POTENTIAL (GWP) METRIC,
COMPARED TO THE BASELINE EMBODIED CARBON EMISSIONS OF CONVENTIONAL
CONCRETE.
(II) "ENVIRONMENTAL PRODUCT DECLARATION (EPD) ANALYSIS" SHALL MEAN
PRODUCT SPECIFIC TYPE III EPDS THAT CONFORM TO ISO STANDARD 14025 AND
ENABLE GLOBAL WARMING POTENTIAL (GWP) AND ENVIRONMENTAL IMPACT COMPAR-
ISONS BETWEEN PRODUCTS FULFILLING THE SAME FUNCTIONS.
(B) ALLOWANCE OF CREDIT. PRODUCERS OF CONCRETE, AS WELL AS THE PRODUC-
ERS OF THE MAJOR CONCRETE COMPONENTS, CEMENT AND AGGREGATE, THAT ARE
TAXPAYERS SHALL BE ALLOWED A CREDIT, TO BE COMPUTED AS PROVIDED IN THIS
SUBSECTION, AGAINST THE TAX IMPOSED BY THIS ARTICLE, TO COMPENSATE FOR
FINANCIAL BURDENS INCURRED AS A RESULT OF EPD ANALYSES UNDERTAKEN TO
DETERMINE THE PRODUCT-BASED EMBODIED CARBON EMISSIONS OF ONE OR MULTIPLE
CONCRETE PRODUCTS PRODUCED AT ONE OR MULTIPLE PLANTS THAT SUCH TAXPAYER
OWNS AND OPERATES.
(C) AMOUNT OF CREDIT. THE CREDIT AUTHORIZED BY THIS SUBSECTION SHALL
NOT EXCEED THE LESSOR OF: (I) THE FULL COSTS INCURRED FOR AN EPD ANALY-
SIS OF A SINGLE CONCRETE, CEMENT, SUPPLEMENTARY CEMENTITIOUS MATERIALS,
AND/OR AGGREGATE PRODUCTION FACILITY; OR (II) THREE THOUSAND DOLLARS,
AND MAY BE CLAIMED FOR THE COSTS OF COMPLETING EPD ANALYSES AT UP TO
EIGHT FACILITIES OWNED BY THE SAME PRODUCER IN A SINGLE TAX YEAR BY A
SINGLE TAXPAYING ENTITY IN TAX YEARS TWO THOUSAND TWENTY-TWO AND TWO
THOUSAND TWENTY-THREE. TAX CREDIT ELIGIBILITY WILL EXPIRE AT THE END OF
TWO THOUSAND TWENTY-THREE.
(D) APPLICATION OF CREDIT. THE CREDIT ALLOWED UNDER THIS SUBSECTION
FOR ANY TAXABLE YEAR SHALL NOT REDUCE THE TAX DUE FOR SUCH YEAR TO LESS
THAN THE FIXED DOLLAR MINIMUM AMOUNT PRESCRIBED IN PARAGRAPH (D) OF
SUBDIVISION ONE OF SECTION TWO HUNDRED TEN OF THIS CHAPTER. HOWEVER, IF
THE AMOUNT OF THE CREDIT ALLOWED UNDER THIS SUBSECTION FOR ANY TAXABLE
YEAR REDUCES THE TAX TO SUCH AMOUNT OR IF THE TAXPAYER OTHERWISE PAYS
TAX BASED ON THE FIXED DOLLAR MINIMUM AMOUNT, ANY AMOUNT OF CREDIT THUS
NOT DEDUCTIBLE IN SUCH TAXABLE YEAR SHALL BE TREATED AS AN OVERPAYMENT
OF TAX TO BE CREDITED OR REFUNDED IN ACCORDANCE WITH THE PROVISIONS OF
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SECTION ONE THOUSAND EIGHTY-SIX OF THIS CHAPTER. PROVIDED, HOWEVER, THE
PROVISIONS OF SUBSECTION (C) OF SECTION ONE THOUSAND EIGHTY-EIGHT OF
THIS CHAPTER NOTWITHSTANDING, NO INTEREST SHALL BE PAID THEREON.
§ 4. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law and shall apply to
taxable years commencing on and after such date. Effective immediately,
the addition, amendment and/or repeal of any rule or regulation neces-
sary for the implementation of this act on its effective date are
authorized to be made and completed on or before such effective date.