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A09042 Summary:

Add §204, Exec L; amd §210-B, Tax L
Enacts "The Climate Forward Concrete Leadership Act"; relates to green procurement specifications for concrete.
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A09042 Actions:

01/31/2022referred to governmental operations
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A09042 Text:

                STATE OF NEW YORK
            S. 8174                                                  A. 9042
                SENATE - ASSEMBLY
                                    January 31, 2022
        IN  SENATE  --  Introduced  by  Sen.  KAMINSKY -- read twice and ordered
          printed, and when printed to be committed to the Committee on Procure-
          ment and Contracts
        IN ASSEMBLY -- Introduced by M. of A. CARROLL -- read once and  referred
          to the Committee on Governmental Operations
        AN  ACT  to amend the executive law and the tax law, in relation to "The
          Climate Forward Concrete Leadership Act"
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1.  This  act shall be known and may be cited as "The Climate
     2  Forward Concrete Leadership Act".
     3    § 2. The executive law is amended by adding a new section 204 to  read
     4  as follows:
     5    §  204.  The  climate  forward  concrete  leadership  act.  1. For the
     6  purposes of this section, the following terms shall have  the  following
     7  meanings:
     8    a.  "Approved  green  procurement  specifications"  shall refer to the
     9  specifications approved for use by state agencies and public authorities
    10  in the procurement of commodities, services and technology by the  state
    11  interagency  committee,  pursuant  to executive order number four of two
    12  thousand eight. Approved green  procurement  specifications  shall:  (i)
    13  reduce  or  eliminate the health and environmental risks from the use or
    14  release of toxic substances; (ii) minimize risks  of  the  discharge  of
    15  pollutants  into the environment; (iii) minimize the volume and toxicity
    16  of packaging; (iv) maximize the use of recycled content and  sustainably
    17  managed  renewable  resources;  and  (v) provide other environmental and
    18  health benefits.
    19    b. "Approved materials, equipment, methods  and  procedures  list"  or
    20  "approved  materials  list" shall refer to the department of transporta-
    21  tion's index of materials, equipment, methods and procedures  that  have
    22  been evaluated and approved for use in state projects.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 8174                             2                            A. 9042
     1    c.  "CO2e" or "carbon dioxide equivalent" shall mean a measure used to
     2  compare the lows from various greenhouse gases based upon  their  global
     3  warming potential.
     4    d.  "Concrete"  shall  mean  structural  and  non-structural  masonry,
     5  precast and ready-mix concrete building products.
     6    e. "Concrete mix and product" shall mean  a  specific  combination  of
     7  components, including water, cement, aggregate and other materials which
     8  are used to produce concrete products.
     9    f. "Embodied carbon" shall mean carbon emissions generated as a result
    10  of a material's production, including mining, refining, and shipping.
    11    g.  "EPD"  or  "environmental  product declaration" shall mean product
    12  specific Type III EPDs that conform to ISO Standard 14025 and enable the
    13  numeric GWP and environmental impact comparisons between concrete  mixes
    14  fulfilling the same functions.
    15    h. "GWP" or "global warming potential" shall mean a numeric value that
    16  measures  the  total contribution to global warming from the emission of
    17  greenhouse gases, or the  elimination  of  greenhouse  gas  sinks,  that
    18  results from the production and/or utilization of a method or product.
    19    i.  "Lower carbon concrete" shall refer to concrete mixes and products
    20  that: (i) have been verified to result in a GWP value that is  equal  to
    21  or  less  than  the  GWP value of the present approved green procurement
    22  specifications; and (ii) do not result in  the  elevation  of  hazardous
    23  pollutants  that have been verified to be harmful to human health and/or
    24  ecosystems.
    25    j. "Lower carbon concrete green procurement specification" shall refer
    26  to lower carbon concrete specifications approved by the state interagen-
    27  cy committee.
    28    k. "Lower carbon concrete performance bonus"  shall  mean  a  monetary
    29  bonus awarded to concrete producers for the manufacture of concrete that
    30  results  in superior GWP performance, as verified by environmental prod-
    31  uct declarations.
    32    l. "Maximum global warming potential threshold" shall mean the maximum
    33  GWP values that are permissible for concrete mixes and products procured
    34  and utilized in state construction projects,  as  approved  and  revised
    35  every three years by the state interagency committee.
    36    m. "OGS" shall mean the office of general services.
    37    n.  "Performance-based  specification" shall mean a contract provision
    38  that requires that a structural material achieve  specified  performance
    39  outcomes  from  the  use  of the structural material, including, but not
    40  limited to, outcomes related to the strength, durability,  permeability,
    41  or other attributes related to the function of the building material for
    42  applied  uses,  as  opposed  to  requiring that a structural material be
    43  produced using  a  specific  prescribed  manufacturing  process,  design
    44  features, technologies, or proportions of constituent materials.
    45    o. "Portland cement" shall mean hydraulic cement produced by pulveriz-
    46  ing  clinkers  in  combination  with one or more of the forms of calcium
    47  sulfate.
    48    p. "State interagency committee" means the state interagency committee
    49  on sustainability and green procurement established pursuant  to  execu-
    50  tive order number four of two thousand eight.
    51    2.  The  office, in consultation with the state interagency committee,
    52  shall:
    53    a. evaluate and propose modifications to the approved  green  procure-
    54  ment  specifications for lower carbon concrete every three years follow-
    55  ing initial approval of such specifications pursuant to executive  order
    56  number four of two thousand eight.

        S. 8174                             3                            A. 9042
     1    b. establish and make publicly available maximum global warming poten-
     2  tial thresholds for all lower carbon concrete green procurement specifi-
     3  cations approved by such state interagency committee.
     4    c. develop and implement performance-based specifications for concrete
     5  for  use in buildings as well as horizontal roadways and infrastructure,
     6  including modular units such as  concrete  masonry  units  and  concrete
     7  brick  by  no  later than January first, two thousand twenty-three. Such
     8  performance-based specifications shall include GWP thresholds  equal  to
     9  the  maximum GWP thresholds established for approved low carbon concrete
    10  green procurement specifications.
    11    d. develop and implement rules related to  the  procurement  of  lower
    12  carbon  concrete  by  agencies and departments for construction projects
    13  that are funded by the state.
    14    (i) Such rules shall incorporate two compliance methods  for  contrac-
    15  tors  completing state-funded construction projects involving the place-
    16  ment of fifty cubic yards or more of concrete: (A) a prescriptive  spec-
    17  ification  compliance  method  by  which contractors may specify and use
    18  approved low carbon concrete green procurement specifications; and (B) a
    19  performance-based compliance method by which contractors may specify and
    20  place concrete products that meet the  performance-based  specifications
    21  established  by  the office pursuant to subparagraph (iii) of this para-
    22  graph.
    23    (ii) Any public works construction project involving the placement  of
    24  fifty  cubic  yards  or more of concrete general contractors and subcon-
    25  tractors shall be required to submit environmental product  declarations
    26  for all concrete products utilized in projects.
    27    (iii)  For  any public works construction project involving the place-
    28  ment of fifty cubic yards or more of  concrete  a  low  carbon  concrete
    29  performance  bonus  shall  be made eligible to concrete manufacturers. A
    30  maximum performance bonus equaling five percent of the total  amount  of
    31  the  contract  between a concrete producer and the state, or between the
    32  concrete producer and a general contractor retained by the state for the
    33  delivery of concrete products shall be awarded to concrete producers for
    34  products that are verified to attain GWP scores that are  at  a  minimum
    35  fifteen  percent  lower  than the GWP scores established in lower carbon
    36  concrete green procurement specifications. A performance bonus  equaling
    37  eight  percent  of  the total amount of the contract for the delivery of
    38  concrete products shall be awarded to concrete  producers  for  concrete
    39  products  that  are verified to achieve GWP scores that are at a minimum
    40  twenty-five percent lower than  the  GWP  scores  established  in  lower
    41  carbon concrete green procurement specifications.
    42    (iv)  Cement  products that are manufactured at facilities where waste
    43  materials, including but not limited  to  tire-derived  fuel,  ash,  any
    44  hazardous  waste, and any solid waste, are combusted leading to emission
    45  of pollutants hazardous to human health or ecosystems shall be prohibit-
    46  ed from inclusion in lower carbon concrete green procurement  specifica-
    47  tions.
    48    (v) The head of the department or agency constructing the public works
    49  shall  be required to notify prospective bidders of all stipulations set
    50  forth in this paragraph in an advertisement or solicitation of a request
    51  for proposal, invitation for bid, or solicitation of  proposal,  or  any
    52  other method provided for by law or regulation for soliciting a response
    53  from  offerors intending to result in a contract pursuant to this subdi-
    54  vision.

        S. 8174                             4                            A. 9042
     1    All rules stipulated in subparagraphs (i), (ii), (iii), (iv), and  (v)
     2  of  this  paragraph  shall  be  formulated and implemented no later than
     3  January first, two thousand twenty-three.
     4    3.  The  commissioner  of  transportation shall implement an expedited
     5  evaluation protocol for low embodied carbon concrete products, materials
     6  and methods  submitted  for  evaluation  by  private  manufacturers  and
     7  suppliers  for  inclusion  in  the department's approved materials list.
     8  Applications submitted by manufacturers and suppliers  shall  be  evalu-
     9  ated,  and  applicants shall be notified of evaluation results, no later
    10  than six months following receipt of application.
    11    4. The office shall issue regulations for the implementation  of  this
    12  act, including but not limited to: (i) establishing guidelines that will
    13  assist  agencies in determining which contracts meet the requirements of
    14  this section; (ii) publishing such purchasing guidelines on the office's
    15  website,  disseminating  such  guidelines  to  agencies   and   training
    16  contracting personnel on implementing such guidelines; and (iii) provid-
    17  ing for monitoring of implementation.
    18    §  3. Section 210-B of the tax law is amended by adding a new subdivi-
    19  sion 58 to read as follows:
    20    58. The environmental product declaration tax credit. (a) Allowance of
    21  credit. Producers of concrete, as well as the  producers  of  the  major
    22  concrete  components,  cement and aggregate, that are taxpayers shall be
    23  allowed a credit, to  be  computed  as  provided  in  this  subdivision,
    24  against the tax imposed by this article, to compensate for environmental
    25  product  declaration  technology  costs  at  one  or  multiple  concrete
    26  production plants that such taxpayer owns and operates.
    27    (b) Amount of credit. The credit authorized by this subdivision  shall
    28  not  exceed  the  lesser of: (i) the full costs incurred for an environ-
    29  mental product  declaration  analysis  of  a  single  concrete,  cement,
    30  supplementary cementitious materials, and/or aggregate production facil-
    31  ity;  or (ii) five thousand dollars, and may be claimed for the costs to
    32  complete in environmental product declaration analyses at  up  to  eight
    33  facilities  owned  by the same producer in a single tax year by a single
    34  taxpaying entity in tax years  two  thousand  twenty-two,  two  thousand
    35  twenty-three  and  two thousand twenty-four. Tax credit eligibility will
    36  expire at the end of the two thousand twenty-four taxable year.
    37    (c) Application of credit. The credit allowed under  this  subdivision
    38  for  any taxable year shall not reduce the tax due for such year to less
    39  than the fixed dollar minimum amount  prescribed  in  paragraph  (d)  of
    40  subdivision  one of section two hundred ten of this article. However, if
    41  the amount of the credit allowed under this subdivision for any  taxable
    42  year  reduces  the  tax to such amount or if the taxpayer otherwise pays
    43  tax based on the fixed dollar minimum amount, any amount of credit  thus
    44  not  deductible  in such taxable year shall be treated as an overpayment
    45  of tax to be credited or refunded in accordance with the  provisions  of
    46  section  one thousand eighty-six of this chapter. Provided, however, the
    47  provisions of subsection (c) of section  one  thousand  eighty-eight  of
    48  this chapter notwithstanding, no interest shall be paid therein.
    49    §  4. This act shall take effect immediately and section three of this
    50  act shall apply to taxable years beginning on or after January 1,  2022;
    51  provided,  however, section three of this act shall expire and be deemed
    52  repealed January 1, 2025.
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