Bill Text: NY S01731 | 2021-2022 | General Assembly | Introduced


Bill Title: Enacts the "New York state healthy and green procurement act".

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2021-01-25 - COMMITTEE DISCHARGED AND COMMITTED TO PROCUREMENT AND CONTRACTS [S01731 Detail]

Download: New_York-2021-S01731-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          1731

                               2021-2022 Regular Sessions

                    IN SENATE

                                    January 14, 2021
                                       ___________

        Introduced  by  Sen. HOYLMAN -- read twice and ordered printed, and when
          printed to be committed to the Committee on Finance

        AN ACT to amend the state finance law, the economic development law  and
          the  environmental conservation law, in relation to the state procure-
          ment process and to healthy and green procurement

          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 "New York
     2  state healthy and green procurement act".
     3    § 2. Legislative findings  and  declaration.  The  legislature  hereby
     4  finds and declares that:
     5    (a)  As  New York moves into the twenty-first century the state should
     6  serve as a role model for practices that  will  create  and  maintain  a
     7  healthy  environment  and  vibrant  economy.  The  manufacture,  use and
     8  disposal of commodities and technologies, the construction of  buildings
     9  and the provision of services utilizing toxic chemicals may have adverse
    10  impacts  on  public health and the environment. Persistent, bioaccumula-
    11  tive toxic chemicals, such as mercury, lead, dioxin and poly  brominated
    12  diphenyl  ethers,  are toxic in small amounts, remain in the environment
    13  for long periods of time, and build to dangerous levels in humans,  fish
    14  and  other  animals;  and  this  group of pollutants known as persistent
    15  bioaccumulative toxic chemicals (PBT) pose risks to  public  health  and
    16  the environment through their ability to cause cancer, birth defects and
    17  endocrine  disruption.  Such  chemicals  have polluted hundreds of water
    18  bodies, fish and waterfowl in the state. These  adverse  impacts  impose
    19  costs  on  the  state and, ultimately, society as a whole in the form of
    20  injury, disease and death; health care expenses; disposal, liability and
    21  cleanup costs; the waste of resources and raw materials; and an impaired
    22  natural environment.  PBT and cancer-causing chemicals may be found in a
    23  wide range of consumer products purchased by state  agencies,  including
    24  lighting  supplies,  computers  and  other  office  equipment, vehicles,

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05323-01-1

        S. 1731                             2

     1  medical equipment, building  supplies  and  printing  inks.  Encouraging
     2  innovation,  and  creating  and  choosing  the  safest, most sustainable
     3  commodities, services and technologies will  help  to  ensure  a  higher
     4  quality of life for present and future generations. It will put New York
     5  businesses  in an advantageous position to compete in the global market-
     6  place.
     7    (b) New York looks forward to the  time  when  the  state's  power  is
     8  generated  from  renewable  and  clean sources, when our homes, schools,
     9  businesses  and  government  facilities   are   energy   efficient   and
    10  constructed, refurbished and maintained using healthy and green products
    11  and  practices,  when pollution prevention is embraced by government and
    12  businesses as a way to save money and  protect  public  health  and  the
    13  environment, when government and citizens use energy efficient and clean
    14  vehicles,  when pests are controlled with nontoxic or least toxic alter-
    15  natives, when our production of waste is significantly reduced  and  the
    16  rest is recycled, and when our homes, schools, workplaces, food, air and
    17  water are free from toxic contaminants.
    18    (c)  Protecting  public  health and the environment is consistent with
    19  the traditional considerations associated with state  procurement  prac-
    20  tice,  including lowest price, best value, quality, cost and efficiency.
    21  Determining quality, value and efficiency should include  the  consider-
    22  ation  of  public  health  and  environmental  impacts. Considering such
    23  impacts early in the  procurement  process  and  adopting  an  ethic  of
    24  pollution  prevention  will not only reduce pollution and waste, it will
    25  reduce costs throughout a commodity, service or technology's life cycle.
    26    (d) Through the volume of government procurement, government can  play
    27  a  significant role in spurring private sector development of high value
    28  commodities and services.  This,  in  turn,  will  create  business  and
    29  employment  opportunities  in  New  York  state,  foster competition and
    30  harness the energy of the market to produce products and  services  that
    31  perform better and cost less. As supply increases, prices will decrease,
    32  and  high performance, healthy and green commodities, services and tech-
    33  nologies will become more affordable for all consumers.
    34    § 3. Subdivision 5 of section 160 of the state finance law,  as  added
    35  by chapter 83 of the laws of 1995, is amended to read as follows:
    36    5.  "Costs"  as  used  in  this  article shall be quantifiable and may
    37  include, without limitation, the price of  the  given  good  or  service
    38  being  purchased;  the administrative, training, storage, maintenance or
    39  other overhead associated with a given good or  service;  the  value  of
    40  warranties, delivery schedules, financing costs and foregone opportunity
    41  costs  associated  with  a  given good or service; and the life span and
    42  associated  life  cycle  costs  of  the  given  good  or  service  being
    43  purchased.  Life  cycle  costs may include, but shall not be limited to,
    44  costs or savings associated with raw materials, production,  manufactur-
    45  ing,  construction,  packaging,  distribution,  use, energy use, mainte-
    46  nance, operation, and salvage or disposal, and, if such  information  is
    47  readily  available,  any  indirect associated public health and environ-
    48  mental costs.
    49    § 4. Paragraph a of subdivision 1 of section 161 of the state  finance
    50  law,  as  amended by chapter 452 of the laws of 2012, is amended to read
    51  as follows:
    52    a. The state procurement council shall continuously strive to  improve
    53  the  state's  procurement process.  Such council shall consist of [twen-
    54  ty-one] twenty-five members, including the commissioner, the state comp-
    55  troller, the director of the budget, the chief diversity officer  [and],
    56  the  commissioner  of  economic development, the commissioner of health,

        S. 1731                             3

     1  and the commissioner of environmental conservation, or their  respective
     2  designees;  [seven]  five  members who shall be the heads of other large
     3  and small state agencies chosen by the  governor,  or  their  respective
     4  designees;  one  member,  appointed by the governor, representing a not-
     5  for-profit New York-based organization engaged in the  marketing  and/or
     6  promotion of New York grown farm and agricultural products or a not-for-
     7  profit  New  York-based  organization  engaged  solely  in the advocacy,
     8  marketing and/or promotion of organic New York grown farm  and  agricul-
     9  tural  products  to be limited to a two year term; and [eight] twelve at
    10  large members appointed as follows: [three] five appointed by the tempo-
    11  rary president of the senate, one of whom shall be a  representative  of
    12  local government [and], one of whom shall be a representative of private
    13  business,  and  one of whom shall be a representative of an organization
    14  whose prime function is the enhancement of public health or the environ-
    15  ment; [three] five appointed by the speaker of the assembly, one of whom
    16  shall be a representative of local government [and], one of  whom  shall
    17  be  a  representative  of  private  business, and one of whom shall be a
    18  representative of an organization whose prime function is  the  enhance-
    19  ment  of public health or the environment; one appointed by the minority
    20  leader of the senate; and, one appointed by the minority leader  of  the
    21  assembly;  and  two  non-voting  observers  appointed  as  follows:  one
    22  appointed by the temporary president of the senate and one appointed  by
    23  the speaker of the assembly. The non-voting observers shall be provided,
    24  contemporaneously,   all  documentation  and  materials  distributed  to
    25  members. The council shall be chaired by the commissioner and shall meet
    26  at least quarterly.
    27    § 5. The state finance law is amended by adding a new section 164-a to
    28  read as follows:
    29    § 164-a. Healthy and green procurement.  1. Healthy and green procure-
    30  ment policy. It is hereby declared to be the policy of the state to  the
    31  extent  practicable  to  purchase commodities, services and technologies
    32  that minimize potential adverse impacts on public health and  the  envi-
    33  ronment  when compared with competing commodities, services or technolo-
    34  gies that serve the same purpose.
    35    2. Definitions. For the purposes of this section, the following  terms
    36  shall have the following meanings unless otherwise specified:
    37    a.  "Pollution  prevention" shall mean pollution prevention as defined
    38  in article twenty-eight of the environmental conservation law.
    39    b. "Priority toxic substances of concern" shall include,  but  not  be
    40  limited  to,  any  substance  listed as known to be or reasonably antic-
    41  ipated, pursuant to the National Toxicology Program report  on  carcino-
    42  gens,  to  be  a  human  carcinogen in the national toxicology program's
    43  biennial report on carcinogens submitted to the United  States  Congress
    44  by the secretary of health and human services; and any substance identi-
    45  fied  as  a  persistent  and/or bioaccumulative toxic substance on lists
    46  maintained by the United States environmental protection agency, includ-
    47  ing the national partnership for environmental priorities; or the inter-
    48  national joint commission created pursuant  to  the  Great  Lakes  water
    49  quality  agreement of 1978; and perfluorinated compounds, dioxin, bromi-
    50  nated flame  retardants  and  bisphenol  A  due  to  their  toxicity  in
    51  production, use and disposal.
    52    3. Minimum specifications for healthy and green procurement.  Consist-
    53  ent  with determinations of need required by subdivision five of section
    54  one hundred sixty-three  of  this  article,  all  state  agencies  shall
    55  procure  commodities,  services and technologies that meet or exceed the
    56  following minimum specifications:

        S. 1731                             4

     1    a. Recycled content. All copy paper and other paper supplies for which
     2  the United States environmental protection agency has developed recycled
     3  content recommendations pursuant to section  six  thousand  two  of  the
     4  federal resource conservation and recovery act shall be required to meet
     5  or  exceed  the agency's minimum post-consumer material content percent-
     6  ages recommended in the most recent recovered materials advisory  notice
     7  issued  for  such  commodity in the federal register; provided, however,
     8  that xerographic paper shall contain no less than thirty  percent  post-
     9  consumer recycled content. The commissioner shall also make available to
    10  all agencies, one hundred percent post-consumer, processed chlorine-free
    11  copy paper. All agencies shall print publications on recycled paper, and
    12  minimum  percentages shall be met unless costs for such paper exceed the
    13  cost of other available commodities by more than ten percent.
    14    b. Waste reduction. Agencies shall seek to reduce  waste  in  products
    15  and  packaging, including the formulation of policies to promote the use
    16  of double-sided copying and printing to the greatest extent practicable.
    17  Agencies shall favor durability, repairability and reuse when purchasing
    18  supplies. The commissioner shall establish  minimum  specifications  for
    19  waste  reduction  within  twelve  months  of  the effective date of this
    20  section.
    21    c. Energy efficiency. All commodities for  which  the  federal  energy
    22  management  program of the United States department of energy has issued
    23  product energy efficiency recommendations  shall  meet  or  exceed  such
    24  recommendations.    Agencies  shall seek to achieve reductions in energy
    25  and petroleum consumption; adhere to energy star building criteria; seek
    26  out office space and real estate investments in  buildings  with  energy
    27  star  rating; and follow the public service commission's renewable port-
    28  folio standard to increase the purchase of renewable energy so  that  at
    29  least twenty-five percent of the overall annual electric energy require-
    30  ments  of  buildings owned, leased or operated by state agencies will be
    31  renewable energy by two thousand twenty-six.
    32    d.  Green  buildings.  All  capital   projects   with   an   estimated
    33  construction  cost  of  two  million  dollars  or more involving (1) the
    34  construction of a new building, (2) an addition to an existing building,
    35  or (3) the substantial reconstruction of an existing building  shall  be
    36  designated  and  constructed  to comply with building standards not less
    37  stringent than the standards  prescribed  by  the  United  States  green
    38  building  council  leadership  in energy and environmental design silver
    39  rating and standards set forth in the definition of a "green base build-
    40  ing" as defined in section nineteen of the tax law, or any portion ther-
    41  eof, any modification of or amendments thereto, and to utilize materials
    42  which do not contain polyvinyl chloride to the greatest extent practica-
    43  ble.  In addition, all state-owned and operated buildings of fifty thou-
    44  sand square feet or larger shall be operated to meet such standards  for
    45  existing buildings to the maximum extent practicable that is cost effec-
    46  tive by not later than two thousand twenty-five.
    47    4.  Specifications  to  incorporate healthy and green procurement.  a.
    48  Beginning one year after the effective date of this section,  all  state
    49  agencies, when procuring commodities, services or technology pursuant to
    50  section  one hundred sixty-three of this article, shall follow practices
    51  and develop solicitation specifications that meet or exceed the  minimum
    52  specifications for healthy and green procurement established in subdivi-
    53  sion three of this section. All such contracts shall include a statement
    54  describing how such minimum specifications were met.
    55    b. In the event that an agency receives no bids or proposals that meet
    56  the  specifications  developed  pursuant to paragraph a of this subdivi-

        S. 1731                             5

     1  sion, such agency may withdraw the request for  bids  or  proposals  and
     2  begin  a new procurement with new specifications without such specifica-
     3  tions and award a contract in accordance with other applicable statutes;
     4  provided,  however  that such agency shall document the reasons why such
     5  procurement does not meet the minimum  specifications  for  healthy  and
     6  green  procurement  established  in  this  subdivision  and  submit such
     7  documentation to the commissioner for inclusion  in  the  annual  report
     8  required  pursuant  to this section and to the office of the comptroller
     9  for inclusion in the procurement record.
    10    5. Balancing healthy and green procurement with price, lowest cost and
    11  best value.
    12    a. Nothing in this section shall be construed  as  requiring  a  state
    13  agency  to procure a commodity, service or technology that does not meet
    14  the form, function and utility required by such agency, or as  requiring
    15  a state agency to procure a commodity, service or technology the cost of
    16  which  exceeds the cost of an alternative available commodity or service
    17  by more than ten percent.
    18    b. When determining and comparing costs, state agencies shall consider
    19  cost as defined in section one hundred sixty of this article.
    20    6. Healthy and green procurement officer,  coordinators,  coordinating
    21  council.
    22    a.  Within  one  hundred  eighty  days  of  the effective date of this
    23  section, the commissioner shall assign an individual within  the  office
    24  of  general services to serve as the state healthy and green procurement
    25  officer.  Such officer shall assist the commissioner with  carrying  out
    26  his or her duties under this section, including but not limited to:
    27    (i)  assisting  the commissioner with the development and provision of
    28  guidance for healthy and green procurement pursuant to this section;
    29    (ii) the identification of  at  least  three  "target  categories"  of
    30  commodities,  services  and/or  technologies  annually  pursuant to this
    31  section;
    32    (iii) the development of criteria for the evaluation  of  commodities,
    33  services and/or technologies within targeted categories;
    34    (iv) the creation of approved healthy and green supplies lists;
    35    (v)  the  evaluation of current state agency procurement practices and
    36  the tracking of progress in implementing the healthy and green  procure-
    37  ment  policy,  including  the  integration of environmentally preferable
    38  purchasing and healthy and green supplies lists for all  new  purchasing
    39  of products, services and technologies in target categories;
    40    (vi) the development of the environmental audit program;
    41    (vii) consideration of additional priority toxic substances of concern
    42  as  recommended  by the department of environmental conservation and the
    43  department of health;
    44    (viii) the development of guidelines for public participation;
    45    (ix) the design and implementation of training, outreach and education
    46  programs;
    47    (x) develop metrics for measuring progress in implementing the healthy
    48  and green  procurement  policy,  criteria  and  minimum  specifications,
    49  including  the  identification of milestones and quantifiable goals that
    50  can be used to measure such progress;
    51    (xi) the preparation and submittal of annual reports and the  perform-
    52  ance of a comprehensive five year review; and
    53    (xii)  advise the governor and the legislature regarding the implemen-
    54  tation of the healthy and green procurement policy.
    55    b. Within one hundred eighty  days  of  the  effective  date  of  this
    56  section,  each  state  agency  with  one hundred employees or more shall

        S. 1731                             6

     1  assign an individual  within  such  agency  to  serve  as  the  agency's
     2  sustainable procurement coordinator.
     3    7.  Target  commodity,  service  and/or  technology categories. Within
     4  twelve months of the effective date of this section and annually  there-
     5  after,  the  commissioner,  in  consultation  with the state procurement
     6  council, shall identify  a  minimum  of  three  "target  categories"  of
     7  commodities,  services  and/or  technologies,  which for the purposes of
     8  this chapter shall mean categories of commodities, services and/or tech-
     9  nologies procured by the state which  may  have  an  adverse  impact  on
    10  public health or the environment and for which healthy and green commod-
    11  ities, services or technologies should be identified and substituted.
    12    8.  Environmentally  preferable  purchasing  criteria  for healthy and
    13  green procurement. Within twelve months of the identification and recom-
    14  mendation of at least three "target categories" pursuant to  subdivision
    15  seven  of this section, the commissioner, in consultation with the state
    16  procurement council shall develop environmentally preferable  purchasing
    17  criteria for the evaluation and procurement of products, services and/or
    18  technologies  within  such  targeted  categories.  The following factors
    19  shall be considered in the development of such criteria:
    20    a. Protection of public health and the environment and  the  conserva-
    21  tion of natural resources;
    22    b.  The  protection  of drinking water, groundwater, surface water and
    23  air (including indoor air); and the protection of ecological systems;
    24    c. Pollution prevention, including, but not  limited  to,  considering
    25  healthy  and  green  procurement  during  the design phase of customized
    26  commodities, services or technologies;
    27    d. Avoidance of priority toxic substances; and
    28    e. Positive life cycle attributes, including but not  limited  to  the
    29  minimization of potential adverse impacts on public health and the envi-
    30  ronment  associated with raw materials acquisition, production, manufac-
    31  turing, packaging, transportation, distribution, use, operation, mainte-
    32  nance and disposal.
    33    9. Healthy and green supply lists.
    34    a. For each target commodity, service and/or technology category iden-
    35  tified and recommended pursuant to subdivision seven  of  this  section,
    36  the  commissioner,  in  consultation with the state procurement council,
    37  shall approve specific  commodities,  services  and/or  technologies  as
    38  consistent  with the healthy and green procurement policy, minimum spec-
    39  ifications, and environmentally preferable  purchasing  criteria  estab-
    40  lished  in  subdivisions  one,  three  and  eight  of this section. Such
    41  commodity, service or technology shall then  be  added  to  an  approved
    42  healthy and green supply list for such category.
    43    b.  The commissioner shall create an approved healthy and green supply
    44  list pursuant to the requirements of the state administrative  procedure
    45  act, for a target commodity, service and/or technology category no later
    46  than  twelve  months  following the identification and recommendation of
    47  such category pursuant to subdivision seven of this section,  and  shall
    48  review and revise approved lists annually.
    49    10.  Procurement from healthy and green supply lists.  a. When procur-
    50  ing a commodity, service or technology within a  targeted  category  for
    51  which  an approved healthy and green supply list has been created, state
    52  agencies shall procure such commodity, service or technology  from  such
    53  list.
    54    b.  When a state agency wants to procure a commodity, service or tech-
    55  nology within a targeted category for  which  an  approved  healthy  and
    56  green supply list has been created, but such commodity, service or tech-

        S. 1731                             7

     1  nology  does  not  appear on such list, such agency must obtain a waiver
     2  from  the  requirements  of  this  subdivision  from  the  commissioner,
     3  provided,  however,  that  such  waiver  shall  not  be required for the
     4  purchase  of  commodities,  services  and/or  technologies from the list
     5  available for purchase from preferred sources maintained by the  commis-
     6  sioner  pursuant  to  section  one hundred sixty-two of this article. An
     7  application for such a waiver shall be filed with the commissioner,  who
     8  shall notify the public, provide for a public comment period, and render
     9  a  written decision on such application within forty-five days. A waiver
    10  may be granted when no commodity,  service  and/or  technology  on  such
    11  approved  alternatives  list meets an agency's performance standards. In
    12  order to obtain a waiver, the state agency requesting  the  waiver  must
    13  show that it has:
    14    (i)  thoroughly  tested  each  commodity  or technology, or thoroughly
    15  investigated each service, on the approved supply list and none meet the
    16  agency's performance standards;
    17    (ii) disclosed the use and intensity of use for the commodity, service
    18  or technology and developed a reasonable plan to minimize the use of the
    19  selected commodity, service or technology and protect employees and  the
    20  public from exposure to any priority toxic substance of concern; and
    21    (iii)  prepared  a  plan  to  investigate alternatives to the selected
    22  commodity, service or technology during the waiver period.
    23    c. A state agency may  procure  a  commodity,  service  or  technology
    24  through  a  process  that does not comply with this subdivision when the
    25  purchase of a commodity, service or technology is necessary  to  respond
    26  to  an  emergency which endangers public health or safety, provided such
    27  agency shall within seven business days file a written report  with  the
    28  commissioner  and the office of the comptroller, which shall become part
    29  of the procurement record. The report shall contain the following infor-
    30  mation:
    31    (i) a description of the emergency that prevented compliance with this
    32  subdivision;
    33    (ii) the name of the commodity or technology, or a description of  the
    34  service, its use and intensity of use;
    35    (iii)  a  description  of  the  steps  being taken to safeguard public
    36  health and safety during the emergency; and
    37    (iv) an explanation of how such an emergency can  be  avoided  in  the
    38  future.
    39    11.  Tracking of procurement practices and data.  Within twelve months
    40  of the effective date of this section, the commissioner, in consultation
    41  with the state procurement council, shall:
    42    a. review all procurement regulations, generic solicitation  language,
    43  specifications  and  procedures to ensure that they do not conflict with
    44  the healthy and green procurement  policy,  minimum  specifications  and
    45  criteria  established  pursuant  to subdivisions one, three and eight of
    46  this section.
    47    b. develop metrics and identification of milestones  and  quantifiable
    48  goals  that  can be used to measure progress in implementing the state's
    49  healthy and green procurement policy.
    50    c. develop an efficient and  practicable  method  for  collecting  and
    51  compiling procurement data from state agencies, including but not limit-
    52  ed  to  estimates  of  the volume spent, quantity purchased, and general
    53  purchasing trends for commodities, services and technologies,  including
    54  healthy  and green commodities, services and technologies included in an
    55  approved supply list or a centralized contract.

        S. 1731                             8

     1    12. Training, outreach and education.  a. With the assistance  of  the
     2  department  of environmental conservation, the department of health, and
     3  the office of the comptroller, the commissioner, within twelve months of
     4  the effective date of this section, shall design and  begin  implementa-
     5  tion  of  a  healthy  and  green procurement training program for senior
     6  managers and state agency staff involved in procurement  to  familiarize
     7  them  with  their  responsibilities  under  this  section and ensure the
     8  effective  and  efficient  implementation  of  the  provisions  of  this
     9  section.  Such program shall provide for new employee training and ongo-
    10  ing training.
    11    b. With the assistance of the department of environmental conservation
    12  and the department of health, the commissioner, within  eighteen  months
    13  of the effective date of this section, shall:
    14    (i)  design  and begin implementation of a healthy and green education
    15  and outreach program for agency procurement staff, to  ensure  that  all
    16  procurement  staff  are  aware of the state's preference for healthy and
    17  green commodities, services and technologies.
    18    (ii) design and begin implementation  of  an  education  and  outreach
    19  program  for  contractors  and  vendors to provide them with information
    20  about the development of healthy and  green  commodities,  services  and
    21  technologies and implementation of the provisions of this section.
    22    13.  Annual  report  to  the governor and legislature. Within eighteen
    23  months of the effective date of this section, and annually thereafter in
    24  November, the commissioner shall submit a written report to  the  gover-
    25  nor,  the  speaker  of  the  assembly and the temporary president of the
    26  senate. Such report shall include:
    27    a. identification of the specific measures taken  by  state  agencies,
    28  and  an  evaluation  of the effectiveness of such measures, to implement
    29  the healthy and green procurement policy, including progress made toward
    30  the achievement of any milestones or quantifiable  goals  identified  by
    31  the  commissioner pursuant to subdivision eleven of this section and, to
    32  the extent practicable, a qualitative assessment of the health and envi-
    33  ronmental benefits of the policy;
    34    b. evaluation of the resources available to implement such policy, and
    35  whether such resources are sufficient;
    36    c. recommendations for legislation or any other  specific  actions  or
    37  changes needed to effectively implement the provisions of this section;
    38    d.  a  list  of target commodity, service and/or technology categories
    39  and approved healthy and  green  supply  lists  identified  and  created
    40  pursuant to subdivisions seven and nine of this section;
    41    e.  a list of healthy and green commodities, services and technologies
    42  available for purchase through centralized contracts;
    43    f. a compilation of procurement data collected using methods developed
    44  pursuant to subdivision eleven of this section;
    45    g. additions to the list of priority toxic substances of concern  made
    46  by  the  department  of environmental conservation and the department of
    47  health;
    48    h. an analysis of the measures taken  to  train,  educate  and  assist
    49  state agency staff, vendors and contractors; and
    50    i.  a  plan  for  the  next  reporting period that identifies specific
    51  goals, actions and timelines necessary  to  implement  the  healthy  and
    52  green procurement policy.
    53    § 6. Paragraphs b and h of subdivision 1 of section 261 of the econom-
    54  ic development law, paragraph b as amended by chapter 471 of the laws of
    55  1998,  and paragraph h as amended by section 14 of part SS of chapter 59

        S. 1731                             9

     1  of the laws of 2009, are amended and a new paragraph i is added to  read
     2  as follows:
     3    b. "Eligible  applicant"  or "applicant" shall mean: a small to medium
     4  size business or nonprofit organization which  employs  less  than  five
     5  hundred  workers  or  has  gross  annual  sales of less than ten million
     6  dollars; or any entity granted preferred source status for the  purposes
     7  of  state  procurement  pursuant to section one hundred sixty-two of the
     8  state finance law.
     9    h. "Eligible project" shall mean actions taken by or on behalf  of  [a
    10  New  York  business]  an  eligible  applicant involving the acquisition,
    11  construction, alteration, repair or improvement of a building, fixtures,
    12  machinery or equipment; the redesign, modification, upgrade or  replace-
    13  ment  of processes, procedures, work practices or technology; the refor-
    14  mulation or redesign of products; or improvements in housekeeping, main-
    15  tenance, training or  inventory  control,  provided  that  such  project
    16  results in:
    17    (i)  source  reduction  or  material  substitution,  provided that the
    18  substitution of one hazardous substance, product  or  nonproduct  output
    19  for another does not result in the creation of a new risk,
    20    (ii) in-process recycling,
    21    (iii) recycling or reuse of non-hazardous solid wastes,
    22    (iv) increased energy efficiency,
    23    (v)  conservation  of  the  use  of  water  or other natural resources
    24  improvements in process economics,
    25    (vi) elimination of the purchase of materials, the production of which
    26  for the use of said firm would result in more waste or resource consump-
    27  tion, [or]
    28    (vii) the development, manufacture, production or provision of healthy
    29  and green commodities, services or technologies as  defined  in  section
    30  one hundred sixty-four-a of the state finance law, or
    31    (viii)  other practices or technologies that reduce the use of hazard-
    32  ous materials or otherwise improve air or water quality.
    33    The term "eligible project" shall also include actions taken by or  on
    34  behalf  of a business to support costs of equipment, and/or the acquisi-
    35  tion and/or rehabilitation of real property or structures located or  to
    36  be  located in the state related to the collecting, sorting, and packag-
    37  ing of empty beverage containers as such terms are defined in title  ten
    38  of  article  twenty-seven  of  the environmental conservation law.  Such
    39  actions shall be eligible for state assistance payments under the bever-
    40  age container assistance program pursuant  to  section  27-1018  of  the
    41  environmental conservation law.
    42    The  term  "eligible  project" shall not include end of pipe pollution
    43  control technologies or practices where such controls or  practices  are
    44  designed  primarily to achieve compliance with the environmental conser-
    45  vation law or regulations promulgated pursuant thereto, or energy recov-
    46  ery or incineration, or out-of-process recycling or reuse  of  hazardous
    47  waste or hazardous substances.
    48    i. "Healthy and green commodity, service or technology" shall mean any
    49  commodity,  service  or technology consistent with the healthy and green
    50  procurement policy, criteria and minimum specifications  established  in
    51  subdivisions  one, three and four of section one hundred sixty-four-a of
    52  the state finance law.
    53    § 7. Paragraphs c, d, e, f, g, h, i, l  and  o  of  subdivision  4  of
    54  section  261  of the economic development law, paragraphs c, d, e, f, g,
    55  h, i and l as amended by chapter 471 of the laws of 1998 and paragraph o

        S. 1731                            10

     1  as amended by chapter 180 of the laws of 2006, are amended  to  read  as
     2  follows:
     3    c.  maintain,  provide  and  market a compilation of existing programs
     4  providing incentives for new  or  expanded  business  enterprises  which
     5  could  be  utilized  by  the  secondary materials processing industry or
     6  which manufacture, produce or provide  healthy  and  green  commodities,
     7  services or technologies;
     8    d.  promote  the  utilization  of  such incentives for new or expanded
     9  business enterprises which process or  utilize  secondary  materials  or
    10  which  manufacture,  produce  or  provide healthy and green commodities,
    11  services or technologies to locate in New York state;
    12    e. promote incentives for existing businesses to expand their utiliza-
    13  tion of secondary materials [and], their adoption  of  waste  prevention
    14  technologies   and   practices   and   their  development,  manufacture,
    15  production and provision of healthy and green commodities,  services  or
    16  technologies;
    17    f.  identify special needs and problems facing the secondary materials
    18  processing industry [and], the implementation of  waste  prevention  and
    19  the  development,  manufacture,  production and provision of healthy and
    20  green commodities, services or technologies within New York state;
    21    g. contact institutions, organizations and commercial enterprises that
    22  are potential consumers of secondary materials and products manufactured
    23  with secondary materials or healthy and green commodities,  services  or
    24  technologies;  urging  their  expanded  consumption  of [secondary] such
    25  materials [and], products, commodities, services  and  technologies  and
    26  establishing  markets  for  such  [secondary] materials [and], products,
    27  commodities, services and technologies through the  use  of  letters  of
    28  intent  and such other techniques as the commissioner may deem appropri-
    29  ate;
    30    h. conduct market surveys of  the  potential  consumers  of  secondary
    31  materials  and  products  manufactured  with  secondary materials and of
    32  healthy and green commodities, services or technologies;
    33    i. conduct surveys to determine  the  potential  supply  of  secondary
    34  materials and healthy and green commodities, services or technologies in
    35  the state;
    36    l.  provide  information  concerning  local  and  regional markets for
    37  secondary materials and healthy and green commodities, services or tech-
    38  nologies;
    39    o. provide other technical assistance to assist businesses in reducing
    40  the amount of waste generated by their processes and productively use or
    41  provide for the productive use [of others] of wastes  which  are  gener-
    42  ated;
    43    §  8. Subdivision 5 of section 261 of the economic development law, as
    44  amended by chapter 471 of the laws  of  1998,  is  amended  to  read  as
    45  follows:
    46    5.  The department shall fund feasibility studies for testing of waste
    47  prevention technologies or practices [or both]  and  healthy  and  green
    48  commodities, services and technologies to reduce the amount of waste and
    49  to  promote  energy  and resource conservation by the adoption or use of
    50  such technologies [or], practices, commodities and services by small and
    51  medium sized firms in New York state.
    52    § 9. Subdivision 10 of section 261 of the economic development law, as
    53  amended by chapter 471 of the laws  of  1998,  is  amended  to  read  as
    54  follows:
    55    10.  Technical  feasibility  study.  The  department shall require the
    56  applicant to submit a technical feasibility study which  identifies  and

        S. 1731                            11

     1  analyzes  in  detail  the  waste prevention projects which the applicant
     2  wishes to implement. All feasibility studies must include  the  cost  of
     3  implementation,  a  construction  schedule and, a description of how the
     4  project will minimize, reduce or eliminate the generation of wastes, use
     5  or  reuse  wastes,  increase  energy  efficiency  or water conservation,
     6  increase the manufacture, production, provision or use  of  healthy  and
     7  green commodities, services or technologies, improve air or water quali-
     8  ty and/or improve process economics.
     9    §  10.  Subdivision 14 of section 261 of the economic development law,
    10  as amended by chapter 524 of the laws of 2005, is  amended  to  read  as
    11  follows:
    12    14. Reports. Beginning on January first, nineteen hundred eighty-nine,
    13  the  commissioner  shall  make  an annual report to the governor and the
    14  legislature which shall include, at a minimum, the status of the  activ-
    15  ities  undertaken  pursuant  to  paragraphs a, c, d, e, f, i, j and k of
    16  subdivision four of this section, the status  of  any  other  activities
    17  undertaken pursuant to this article, and recommendations for programs or
    18  policies  that  will further the objectives of expanding the utilization
    19  of secondary materials recovered for reuse, increasing waste  prevention
    20  and  source  reduction,  and  increasing  the  manufacture,  production,
    21  provision and use of healthy and green commodities, services  and  tech-
    22  nologies  within the state. The provisions of this subdivision shall not
    23  be deemed to require or authorize the disclosure of confidential  infor-
    24  mation  or  trade  secrets.    This  report may be consolidated with the
    25  report required by subdivision four of section two  hundred  sixty-three
    26  of this article.
    27    §  11. The opening paragraph of subdivision 1 of section 3-0311 of the
    28  environmental conservation law, as amended by chapter 741 of the laws of
    29  1991, is amended to read as follows:
    30    Each state agency as defined in subdivision five of this section shall
    31  annually audit the environmental problems created by its  operations  or
    32  the  operations  of  contractors it has hired and over whom it has exer-
    33  cised or is required to exercise direct oversight, acting in fulfillment
    34  of their contracts. Such audit shall identify the extent to which  these
    35  operations  are  in  violation  of  this chapter, or regulations adopted
    36  thereunder.  Such audit also shall evaluate the  environmental  problems
    37  created  by  the  agency's  procurement  of commodities, its energy use,
    38  waste production, water and paper use, and the use of any toxic  materi-
    39  als  of  products  reasonably  anticipated  to be carcinogens. Each such
    40  state agency shall submit a report to the department on or before  April
    41  first of each year. The report shall:
    42    §  12.  This  act  shall  take effect on the one hundred eightieth day
    43  after it shall have become a law and shall apply only to state  procure-
    44  ment  contracts  where the request for proposals or the request for bids
    45  was issued after the effective date of this act.  Effective immediately,
    46  the addition, amendment and/or repeal of any rule or  regulation  neces-
    47  sary  for  the  implementation  of  this  act  on its effective date are
    48  authorized to be made and completed on or before such effective date.
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