S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    542
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by Sen. KAMINSKY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Finance
 
 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.
   (V)  "GLOBAL  WARMING POTENTIAL" (GWP) SHALL MEAN A NUMERIC VALUE THAT
 MEASURES THE TOTAL CONTRIBUTION TO GLOBAL WARMING FROM THE  EMISSION  OF

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD01244-03-1

 S. 542                              2
 
 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.
   (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

 S. 542                              3
 
 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-
 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-

 S. 542                              4
 
 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
 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.

 S. 542                              5

   §  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.