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.

 A. 2591                             3
 
   (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-

 A. 2591                             4
 
 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

 A. 2591                             5
 
 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.