S T A T E O F N E W Y O R K
________________________________________________________________________
S. 8174 A. 9042
S E N A T E - A S S E M B L Y
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:
Section 1. This act shall be known and may be cited as "The Climate
Forward Concrete Leadership Act".
§ 2. The executive law is amended by adding a new section 204 to read
as follows:
§ 204. THE CLIMATE FORWARD CONCRETE LEADERSHIP ACT. 1. FOR THE
PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
MEANINGS:
A. "APPROVED GREEN PROCUREMENT SPECIFICATIONS" SHALL REFER TO THE
SPECIFICATIONS APPROVED FOR USE BY STATE AGENCIES AND PUBLIC AUTHORITIES
IN THE PROCUREMENT OF COMMODITIES, SERVICES AND TECHNOLOGY BY THE STATE
INTERAGENCY COMMITTEE, PURSUANT TO EXECUTIVE ORDER NUMBER FOUR OF TWO
THOUSAND EIGHT. APPROVED GREEN PROCUREMENT SPECIFICATIONS SHALL: (I)
REDUCE OR ELIMINATE THE HEALTH AND ENVIRONMENTAL RISKS FROM THE USE OR
RELEASE OF TOXIC SUBSTANCES; (II) MINIMIZE RISKS OF THE DISCHARGE OF
POLLUTANTS INTO THE ENVIRONMENT; (III) MINIMIZE THE VOLUME AND TOXICITY
OF PACKAGING; (IV) MAXIMIZE THE USE OF RECYCLED CONTENT AND SUSTAINABLY
MANAGED RENEWABLE RESOURCES; AND (V) PROVIDE OTHER ENVIRONMENTAL AND
HEALTH BENEFITS.
B. "APPROVED MATERIALS, EQUIPMENT, METHODS AND PROCEDURES LIST" OR
"APPROVED MATERIALS LIST" SHALL REFER TO THE DEPARTMENT OF TRANSPORTA-
TION'S INDEX OF MATERIALS, EQUIPMENT, METHODS AND PROCEDURES THAT HAVE
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.
LBD14395-02-2
S. 8174 2 A. 9042
C. "CO2E" OR "CARBON DIOXIDE EQUIVALENT" SHALL MEAN A MEASURE USED TO
COMPARE THE LOWS FROM VARIOUS GREENHOUSE GASES BASED UPON THEIR GLOBAL
WARMING POTENTIAL.
D. "CONCRETE" SHALL MEAN STRUCTURAL AND NON-STRUCTURAL MASONRY,
PRECAST AND READY-MIX CONCRETE BUILDING PRODUCTS.
E. "CONCRETE MIX AND PRODUCT" SHALL MEAN A SPECIFIC COMBINATION OF
COMPONENTS, INCLUDING WATER, CEMENT, AGGREGATE AND OTHER MATERIALS WHICH
ARE USED TO PRODUCE CONCRETE PRODUCTS.
F. "EMBODIED CARBON" SHALL MEAN CARBON EMISSIONS GENERATED AS A RESULT
OF A MATERIAL'S PRODUCTION, INCLUDING MINING, REFINING, AND SHIPPING.
G. "EPD" OR "ENVIRONMENTAL PRODUCT DECLARATION" 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.
H. "GWP" OR "GLOBAL WARMING POTENTIAL" 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 METHOD OR PRODUCT.
I. "LOWER CARBON CONCRETE" SHALL REFER TO CONCRETE MIXES AND PRODUCTS
THAT: (I) HAVE BEEN VERIFIED TO RESULT IN A GWP VALUE THAT IS EQUAL TO
OR LESS THAN THE GWP VALUE OF THE PRESENT APPROVED GREEN PROCUREMENT
SPECIFICATIONS; AND (II) DO NOT RESULT IN THE ELEVATION OF HAZARDOUS
POLLUTANTS THAT HAVE BEEN VERIFIED TO BE HARMFUL TO HUMAN HEALTH AND/OR
ECOSYSTEMS.
J. "LOWER CARBON CONCRETE GREEN PROCUREMENT SPECIFICATION" SHALL REFER
TO LOWER CARBON CONCRETE SPECIFICATIONS APPROVED BY THE STATE INTERAGEN-
CY COMMITTEE.
K. "LOWER CARBON CONCRETE PERFORMANCE BONUS" SHALL MEAN A MONETARY
BONUS AWARDED TO CONCRETE PRODUCERS FOR THE MANUFACTURE OF CONCRETE THAT
RESULTS IN SUPERIOR GWP PERFORMANCE, AS VERIFIED BY ENVIRONMENTAL PROD-
UCT DECLARATIONS.
L. "MAXIMUM GLOBAL WARMING POTENTIAL THRESHOLD" SHALL MEAN THE MAXIMUM
GWP VALUES THAT ARE PERMISSIBLE FOR CONCRETE MIXES AND PRODUCTS PROCURED
AND UTILIZED IN STATE CONSTRUCTION PROJECTS, AS APPROVED AND REVISED
EVERY THREE YEARS BY THE STATE INTERAGENCY COMMITTEE.
M. "OGS" SHALL MEAN THE OFFICE OF GENERAL SERVICES.
N. "PERFORMANCE-BASED SPECIFICATION" SHALL MEAN A CONTRACT PROVISION
THAT REQUIRES THAT A STRUCTURAL MATERIAL ACHIEVE SPECIFIED PERFORMANCE
OUTCOMES FROM THE USE OF THE STRUCTURAL MATERIAL, INCLUDING, BUT NOT
LIMITED TO, OUTCOMES RELATED TO THE STRENGTH, DURABILITY, PERMEABILITY,
OR OTHER ATTRIBUTES RELATED TO THE FUNCTION OF THE BUILDING MATERIAL FOR
APPLIED USES, AS OPPOSED TO REQUIRING THAT A STRUCTURAL MATERIAL BE
PRODUCED USING A SPECIFIC PRESCRIBED MANUFACTURING PROCESS, DESIGN
FEATURES, TECHNOLOGIES, OR PROPORTIONS OF CONSTITUENT MATERIALS.
O. "PORTLAND CEMENT" SHALL MEAN HYDRAULIC CEMENT PRODUCED BY PULVERIZ-
ING CLINKERS IN COMBINATION WITH ONE OR MORE OF THE FORMS OF CALCIUM
SULFATE.
P. "STATE INTERAGENCY COMMITTEE" MEANS THE STATE INTERAGENCY COMMITTEE
ON SUSTAINABILITY AND GREEN PROCUREMENT ESTABLISHED PURSUANT TO EXECU-
TIVE ORDER NUMBER FOUR OF TWO THOUSAND EIGHT.
2. THE OFFICE, IN CONSULTATION WITH THE STATE INTERAGENCY COMMITTEE,
SHALL:
A. EVALUATE AND PROPOSE MODIFICATIONS TO THE APPROVED GREEN PROCURE-
MENT SPECIFICATIONS FOR LOWER CARBON CONCRETE EVERY THREE YEARS FOLLOW-
ING INITIAL APPROVAL OF SUCH SPECIFICATIONS PURSUANT TO EXECUTIVE ORDER
NUMBER FOUR OF TWO THOUSAND EIGHT.
S. 8174 3 A. 9042
B. ESTABLISH AND MAKE PUBLICLY AVAILABLE MAXIMUM GLOBAL WARMING POTEN-
TIAL THRESHOLDS FOR ALL LOWER CARBON CONCRETE GREEN PROCUREMENT SPECIFI-
CATIONS APPROVED BY SUCH STATE INTERAGENCY COMMITTEE.
C. DEVELOP AND IMPLEMENT PERFORMANCE-BASED SPECIFICATIONS FOR CONCRETE
FOR USE IN BUILDINGS AS WELL AS HORIZONTAL ROADWAYS AND INFRASTRUCTURE,
INCLUDING MODULAR UNITS SUCH AS CONCRETE MASONRY UNITS AND CONCRETE
BRICK BY NO LATER THAN JANUARY FIRST, TWO THOUSAND TWENTY-THREE. SUCH
PERFORMANCE-BASED SPECIFICATIONS SHALL INCLUDE GWP THRESHOLDS EQUAL TO
THE MAXIMUM GWP THRESHOLDS ESTABLISHED FOR APPROVED LOW CARBON CONCRETE
GREEN PROCUREMENT SPECIFICATIONS.
D. DEVELOP AND IMPLEMENT RULES RELATED TO THE PROCUREMENT OF LOWER
CARBON CONCRETE BY AGENCIES AND DEPARTMENTS FOR CONSTRUCTION PROJECTS
THAT ARE FUNDED BY THE STATE.
(I) SUCH RULES SHALL INCORPORATE TWO COMPLIANCE METHODS FOR CONTRAC-
TORS COMPLETING STATE-FUNDED CONSTRUCTION PROJECTS INVOLVING THE PLACE-
MENT OF FIFTY CUBIC YARDS OR MORE OF CONCRETE: (A) A PRESCRIPTIVE SPEC-
IFICATION COMPLIANCE METHOD BY WHICH CONTRACTORS MAY SPECIFY AND USE
APPROVED LOW CARBON CONCRETE GREEN PROCUREMENT SPECIFICATIONS; AND (B) A
PERFORMANCE-BASED COMPLIANCE METHOD BY WHICH CONTRACTORS MAY SPECIFY AND
PLACE CONCRETE PRODUCTS THAT MEET THE PERFORMANCE-BASED SPECIFICATIONS
ESTABLISHED BY THE OFFICE PURSUANT TO SUBPARAGRAPH (III) OF THIS PARA-
GRAPH.
(II) ANY PUBLIC WORKS CONSTRUCTION PROJECT INVOLVING THE PLACEMENT OF
FIFTY CUBIC YARDS OR MORE OF CONCRETE GENERAL CONTRACTORS AND SUBCON-
TRACTORS SHALL BE REQUIRED TO SUBMIT ENVIRONMENTAL PRODUCT DECLARATIONS
FOR ALL CONCRETE PRODUCTS UTILIZED IN PROJECTS.
(III) FOR ANY PUBLIC WORKS CONSTRUCTION PROJECT INVOLVING THE PLACE-
MENT OF FIFTY CUBIC YARDS OR MORE OF CONCRETE A LOW CARBON CONCRETE
PERFORMANCE BONUS SHALL BE MADE ELIGIBLE TO CONCRETE MANUFACTURERS. A
MAXIMUM PERFORMANCE BONUS EQUALING FIVE PERCENT OF THE TOTAL AMOUNT OF
THE CONTRACT BETWEEN A CONCRETE PRODUCER AND THE STATE, OR BETWEEN THE
CONCRETE PRODUCER AND A GENERAL CONTRACTOR RETAINED BY THE STATE FOR THE
DELIVERY OF CONCRETE PRODUCTS SHALL BE AWARDED TO CONCRETE PRODUCERS FOR
PRODUCTS THAT ARE VERIFIED TO ATTAIN GWP SCORES THAT ARE AT A MINIMUM
FIFTEEN PERCENT LOWER THAN THE GWP SCORES ESTABLISHED IN LOWER CARBON
CONCRETE GREEN PROCUREMENT SPECIFICATIONS. A PERFORMANCE BONUS EQUALING
EIGHT PERCENT OF THE TOTAL AMOUNT OF THE CONTRACT FOR THE DELIVERY OF
CONCRETE PRODUCTS SHALL BE AWARDED TO CONCRETE PRODUCERS FOR CONCRETE
PRODUCTS THAT ARE VERIFIED TO ACHIEVE GWP SCORES THAT ARE AT A MINIMUM
TWENTY-FIVE PERCENT LOWER THAN THE GWP SCORES ESTABLISHED IN LOWER
CARBON CONCRETE GREEN PROCUREMENT SPECIFICATIONS.
(IV) CEMENT PRODUCTS THAT ARE MANUFACTURED AT FACILITIES WHERE WASTE
MATERIALS, INCLUDING BUT NOT LIMITED TO TIRE-DERIVED FUEL, ASH, ANY
HAZARDOUS WASTE, AND ANY SOLID WASTE, ARE COMBUSTED LEADING TO EMISSION
OF POLLUTANTS HAZARDOUS TO HUMAN HEALTH OR ECOSYSTEMS SHALL BE PROHIBIT-
ED FROM INCLUSION IN LOWER CARBON CONCRETE GREEN PROCUREMENT SPECIFICA-
TIONS.
(V) THE HEAD OF THE DEPARTMENT OR AGENCY CONSTRUCTING THE PUBLIC WORKS
SHALL BE REQUIRED TO NOTIFY PROSPECTIVE BIDDERS OF ALL STIPULATIONS SET
FORTH IN THIS PARAGRAPH IN AN ADVERTISEMENT OR SOLICITATION OF A REQUEST
FOR PROPOSAL, INVITATION FOR BID, OR SOLICITATION OF PROPOSAL, OR ANY
OTHER METHOD PROVIDED FOR BY LAW OR REGULATION FOR SOLICITING A RESPONSE
FROM OFFERORS INTENDING TO RESULT IN A CONTRACT PURSUANT TO THIS SUBDI-
VISION.
S. 8174 4 A. 9042
ALL RULES STIPULATED IN SUBPARAGRAPHS (I), (II), (III), (IV), AND (V)
OF THIS PARAGRAPH SHALL BE FORMULATED AND IMPLEMENTED NO LATER THAN
JANUARY FIRST, TWO THOUSAND TWENTY-THREE.
3. THE COMMISSIONER OF TRANSPORTATION SHALL IMPLEMENT AN EXPEDITED
EVALUATION PROTOCOL FOR LOW EMBODIED CARBON CONCRETE PRODUCTS, MATERIALS
AND METHODS SUBMITTED FOR EVALUATION BY PRIVATE MANUFACTURERS AND
SUPPLIERS FOR INCLUSION IN THE DEPARTMENT'S APPROVED MATERIALS LIST.
APPLICATIONS SUBMITTED BY MANUFACTURERS AND SUPPLIERS SHALL BE EVALU-
ATED, AND APPLICANTS SHALL BE NOTIFIED OF EVALUATION RESULTS, NO LATER
THAN SIX MONTHS FOLLOWING RECEIPT OF APPLICATION.
4. THE OFFICE SHALL ISSUE REGULATIONS FOR THE IMPLEMENTATION OF THIS
ACT, INCLUDING BUT NOT LIMITED TO: (I) ESTABLISHING GUIDELINES THAT WILL
ASSIST AGENCIES IN DETERMINING WHICH CONTRACTS MEET THE REQUIREMENTS OF
THIS SECTION; (II) PUBLISHING SUCH PURCHASING GUIDELINES ON THE OFFICE'S
WEBSITE, DISSEMINATING SUCH GUIDELINES TO AGENCIES AND TRAINING
CONTRACTING PERSONNEL ON IMPLEMENTING SUCH GUIDELINES; AND (III) PROVID-
ING FOR MONITORING OF IMPLEMENTATION.
§ 3. Section 210-B of the tax law is amended by adding a new subdivi-
sion 58 to read as follows:
58. THE ENVIRONMENTAL PRODUCT DECLARATION TAX CREDIT. (A) ALLOWANCE OF
CREDIT. PRODUCERS OF CONCRETE, AS WELL AS THE PRODUCERS OF THE MAJOR
CONCRETE COMPONENTS, CEMENT AND AGGREGATE, THAT ARE TAXPAYERS SHALL BE
ALLOWED A CREDIT, TO BE COMPUTED AS PROVIDED IN THIS SUBDIVISION,
AGAINST THE TAX IMPOSED BY THIS ARTICLE, TO COMPENSATE FOR ENVIRONMENTAL
PRODUCT DECLARATION TECHNOLOGY COSTS AT ONE OR MULTIPLE CONCRETE
PRODUCTION PLANTS THAT SUCH TAXPAYER OWNS AND OPERATES.
(B) AMOUNT OF CREDIT. THE CREDIT AUTHORIZED BY THIS SUBDIVISION SHALL
NOT EXCEED THE LESSER OF: (I) THE FULL COSTS INCURRED FOR AN ENVIRON-
MENTAL PRODUCT DECLARATION ANALYSIS OF A SINGLE CONCRETE, CEMENT,
SUPPLEMENTARY CEMENTITIOUS MATERIALS, AND/OR AGGREGATE PRODUCTION FACIL-
ITY; OR (II) FIVE THOUSAND DOLLARS, AND MAY BE CLAIMED FOR THE COSTS TO
COMPLETE IN ENVIRONMENTAL PRODUCT DECLARATION 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, TWO THOUSAND
TWENTY-THREE AND TWO THOUSAND TWENTY-FOUR. TAX CREDIT ELIGIBILITY WILL
EXPIRE AT THE END OF THE TWO THOUSAND TWENTY-FOUR TAXABLE YEAR.
(C) APPLICATION OF CREDIT. THE CREDIT ALLOWED UNDER THIS SUBDIVISION
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 ARTICLE. HOWEVER, IF
THE AMOUNT OF THE CREDIT ALLOWED UNDER THIS SUBDIVISION 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 THEREIN.
§ 4. This act shall take effect immediately and section three of this
act shall apply to taxable years beginning on or after January 1, 2022;
provided, however, section three of this act shall expire and be deemed
repealed January 1, 2025.