By: Canales, Darby, Clardy, Phelan, Burrows, H.B. No. 2845
et al.
A BILL TO BE ENTITLED
AN ACT
relating to the removal of wind power facilities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The Utilities Code is amended by adding Title 6
to read as follows:
TITLE 6. WIND POWER
CHAPTER 301. WIND POWER FACILITY AGREEMENTS
Sec. 301.0001. DEFINITIONS. In this chapter:
(1) "Grantee" means a person who:
(A) leases property from a landowner; and
(B) operates a wind power facility on the
property.
(2) "Wind power facility" includes:
(A) a wind turbine generator; and
(B) a facility or equipment used to support the
operation of a wind turbine generator, including an underground or
aboveground electrical transmission or communications line, an
electric transformer, a battery storage facility, an energy storage
facility, telecommunications equipment, a road, a meteorological
tower with wind measurement equipment, or a maintenance yard.
(3) "Wind power facility agreement" means a lease
agreement between a grantee and a landowner that authorizes the
grantee to operate a wind power facility on the leased property.
Sec. 301.0002. WAIVER VOID; REMEDIES. (a) A provision of a
wind power facility agreement that purports to waive a right or
exempt a grantee from a liability or duty established by this
chapter is void.
(b) A person who is harmed by a violation of this chapter is
entitled to appropriate injunctive relief to prevent further
violation of this chapter.
(c) The provisions of this section are not exclusive. The
remedies provided in this section are in addition to any other
procedures or remedies provided by other law.
Sec. 301.0003. REQUIRED AGREEMENT PROVISIONS ON FACILITY
REMOVAL. (a) A wind power facility agreement must provide that the
grantee is responsible for removing the grantee's wind power
facilities from the landowner's property and that the grantee
shall, in accordance with any other applicable laws or regulations,
safely:
(1) clear, clean, and remove from the property:
(A) each wind turbine generator, including
towers and pad-mount transformers;
(B) all liquids, greases, or similar substances
contained in a wind turbine generator;
(C) each substation; and
(D) all liquids, greases, or similar substances
contained in a substation;
(2) for each tower foundation and pad-mount
transformer foundation installed in the ground:
(A) clear, clean, and remove the foundation from
the ground to a depth of at least three feet below the surface grade
of the land in which the foundation is installed; and
(B) ensure that each hole or cavity created in
the ground by the removal is filled with topsoil of the same type or
a similar type as the predominant topsoil found on the property;
(3) for each buried cable, including power,
fiber-optic, and communications cables, installed in the ground:
(A) clear, clean, and remove the cable from the
ground to a depth of at least three feet below the surface grade of
the land in which the cable is installed; and
(B) ensure that each hole or cavity created in
the ground by the removal is filled with topsoil of the same type or
a similar type as the predominant topsoil found on the property; and
(4) clear, clean, and remove from the property each
overhead power or communications line installed by the grantee on
the property.
(b) The agreement must provide that, at the request of the
landowner, the grantee shall:
(1) clear, clean, and remove each road constructed by
the grantee on the property; and
(2) ensure that each hole or cavity created in the
ground by the removal is filled with topsoil of the same type or a
similar type as the predominant topsoil found on the property.
(c) The agreement must provide that, at the request of the
landowner, if reasonable, the grantee shall:
(1) remove from the property all rocks over 12 inches
in diameter excavated during the decommissioning or removal
process;
(2) return the property to a tillable state using
scarification, V-rip, or disc methods, as appropriate; and
(3) ensure that:
(A) each hole or cavity created in the ground by
the removal is filled with topsoil of the same type or a similar
type as the predominant topsoil found on the property; and
(B) the surface is returned as near as reasonably
possible to the same condition as before the grantee dug holes or
cavities, including by reseeding pastureland with native grasses
prescribed by an appropriate governmental agency, if any.
(d) The landowner shall make a request under Subsection (b)
or (c) not later than the 180th day after the later of:
(1) the date on which the wind power facility is no
longer capable of generating electricity in commercial quantities;
or
(2) the date the landowner receives written notice of
intent to decommission the wind power facility from the grantee.
Sec. 301.0004. REQUIRED AGREEMENT PROVISIONS ON FINANCIAL
ASSURANCE. (a) A wind power facility agreement must provide that
the grantee shall obtain and deliver to the landowner evidence of
financial assurance that conforms to the requirements of this
section to secure the performance of the grantee's obligation to
remove the grantee's wind power facilities located on the
landowner's property as described by Section 301.0003. Acceptable
forms of financial assurance include a parent company guaranty with
a minimum investment grade credit rating for the parent company
issued by a major domestic credit rating agency, a letter of credit,
a bond, or another form of financial assurance acceptable to the
landowner.
(b) The amount of the financial assurance must be at least
equal to the estimated amount by which the cost of removing the wind
power facilities from the landowner's property and restoring the
property to as near as reasonably possible the condition of the
property as of the date the agreement begins exceeds the salvage
value of the wind power facilities, less any portion of the value of
the wind power facilities pledged to secure outstanding debt.
(c) The agreement must provide that:
(1) the estimated cost of removing the wind power
facilities from the landowner's property and restoring the property
to as near as reasonably possible the condition of the property as
of the date the agreement begins and the estimated salvage value of
the wind power facilities must be determined by an independent,
third-party professional engineer licensed in this state;
(2) the grantee must deliver to the landowner an
updated estimate, prepared by an independent, third-party
professional engineer licensed in this state, of the cost of
removal and the salvage value at least once every five years for the
remainder of the term of the agreement; and
(3) the grantee is responsible for ensuring that the
amount of the financial assurance remains sufficient to cover the
amount required by Subsection (b), consistent with the estimates
required by this subsection.
(d) The grantee is responsible for the costs of obtaining
financial assurance described by this section and costs of
determining the estimated removal costs and salvage value.
(e) The agreement must provide that the grantee shall
deliver the financial assurance not later than the earlier of:
(1) the date the wind power facility agreement is
terminated; or
(2) the 10th anniversary of the commercial operations
date of the wind power facilities located on the landowner's leased
property.
(f) For purposes of this section, "commercial operations
date" means the date on which the wind power facilities are approved
for participation in market operations by a regional transmission
organization and does not include the generation of electrical
energy or other operations conducted before that date for purposes
of maintenance and testing.
(g) The grantee may not cancel financial assurance before
the date the grantee has completed the grantee's obligation to
remove the grantee's wind power facilities located on the
landowner's property in the manner provided by this chapter, unless
the grantee provides the landowner with replacement financial
assurance at the time of or before the cancellation. In the event
of a transfer of ownership of the grantee's wind power facilities,
the financial security provided by the grantee shall remain in
place until the date evidence of financial security meeting the
requirements of this chapter is provided to the landowner.
SECTION 2. Chapter 301, Utilities Code, as added by this
Act, applies only to a wind power facility agreement entered into on
or after the effective date of this Act. A wind power facility
agreement entered into before the effective date of this Act is
governed by the law as it existed immediately before that date, and
that law is continued in effect for that purpose.
SECTION 3. This Act takes effect September 1, 2019.