Responsible Decommissioning Act

Model Policy

Section 1. Short Title.
This Act may be cited as the “Responsible Decommissioning Act.”

Section 2. Definitions. As used in this Act:
(a) “Abandoned” means a renewable energy facility that has neither generated electricity in commercial quantities or, for a stand-alone battery energy storage system, stored or discharged electricity commercially for 24 months. The term excludes interruptions caused by force majeure or documented repair, repowering, augmentation, or replacement if commercial operation resumes within a reasonable period approved by the department.
(b) “Battery energy storage system” means devices or facilities that store electrical energy in chemical, mechanical, thermal, or other form and deliver it for sale or use, together with associated modules, containers, racks, inverters, transformers, fire-suppression and control equipment, communications equipment, foundations, electrical lines, roads, fencing, and maintenance areas, with a nameplate capacity greater than or equal to 50 megawatts.
(c) “Commercial operations date” means the date a renewable energy facility first generates electricity for sale or a battery energy storage system first stores or discharges electricity commercially, excluding testing and maintenance.
(d) “Decommissioning plan” means a written plan for facility removal, property restoration, completion timing, net decommissioning cost, and financial assurance.
(e) “Department” means the state agency designated by law to administer this Act.
(f) “Electric supplier” means a person or entity that sells, transmits, or distributes electricity to retail or wholesale customers under state law.
(g) “Financial assurance” means a bond, parent company guarantee, or irrevocable letter of credit securing performance of decommissioning and restoration obligations under this Act. The term does not include cash.
(h) “Landowner” means a person holding legal title to real property on which a renewable energy facility is located.
(i) “Operator” means a person that manages, operates, leases, or otherwise controls property for a renewable energy facility.
(j) “Owner” means a person that holds all rights of the renewable energy facility including to own and operate or can enter into a contract to designate the operations of the renewable facility to another party.
(k) “Participating property” means property used in connection with a renewable energy facility.
(l) “Renewable energy facility” means a solar power facility, wind energy facility, battery energy storage system, or a combination of those technologies and their associated equipment, improvements, and infrastructure.
(m) “Renewable energy facility agreement” means a lease, easement, or other agreement authorizing the construction or operation of a renewable energy facility on real property and filed with the department.
(n) “Solar energy device” means equipment that collects solar energy and converts or uses that energy as thermal, mechanical, or electrical energy.
(o) “Solar power facility” means solar energy devices and associated equipment and infrastructure, including inverters, transformers, substations, electrical and communications lines, roads, meteorological equipment, fencing, and maintenance areas, with a nameplate capacity greater than or equal to 50 megawatts.
(p) “Wind energy equipment” means a wind turbine, tower, rotor, blade, or other equipment that converts wind energy into electrical energy.
(q) “Wind energy facility” means wind energy equipment and associated foundations, collection and transmission lines, substations, transformers, roads, meteorological towers, communications equipment, fencing, and maintenance areas, with a nameplate capacity greater than or equal to 50 megawatts.

Section 3. Applicability.
This Act applies to each renewable energy facility agreement executed on or after [EFFECTIVE DATE] and does not extend to the general maintenance and repair or repowering of renewable energy facilities or battery energy storage systems permitted, installed, or modified prior to the effective date of this Act.

Section 4. Required Renewable Energy Facility Agreement Terms.
A renewable energy facility agreement shall:

1. Require the owner, to decommission and remove the renewable energy facility upon termination of the agreement or abandonment;
2. Include a decommissioning plan consistent with participating-landowner agreements and Section 5;
3. Require the owner to provide and maintain the financial assurance required by Section 7;
4. Provide the landowner and department with current contact information for the owner, operator and each entity responsible for decommissioning;
5. Require each successor, assignee, or transferee to assume all obligations under this Act in writing before transfer; and
6. File the agreement as prescribed by the department.

Section 5. Decommissioning And Land Restoration Standards.

1. The operator shall decommission the facility under applicable law and return each participating property to a condition similar to its preconstruction condition or as otherwise agreed to in writing by the landowner, and remove all above-surface facilities, supporting equipment, personal property, and infrastructure without an ongoing purpose.
2. The operator shall remove each foundation supporting a solar device, wind turbine or tower, battery energy storage system, transformer, substation, or other facility component to three feet below grade and fill each resulting cavity with soil of a condition similar to the preconstruction condition, unless otherwise negotiated with the landowner.
3. The operator shall remove each underground power, fiber-optic, or communications cable to three feet below grade and fill each resulting cavity with soil of a condition similar to the preconstruction condition, unless otherwise negotiated with the landowner.
4. The operator shall remove each overhead power or communications line installed for the facility.
5. At the landowner’s timely written request, the operator shall remove facility roads and excavated rocks exceeding 12 inches in diameter; fill resulting cavities with compatible soil; restore drainage; address compaction and erosion; and return the surface as nearly as practicable to its preconstruction condition, including reseeding with the state’s recommended seed mix.
6. All renewable energy facility components including but not limited to, solar modules, wind components, batteries, and other materials shall be removed and disposed, and to the extent reasonably practicable and services are available reused, recycled, or recovered.

Section 6. Decommissioning Triggers; Timelines; Landowner Requests.

1. Decommissioning shall be completed within 12 months after abandonment or agreement termination, unless the department or landowner grants a written extension for good cause.
2. The operator shall notify the landowner and department of its intent to decommission within 90 days after abandonment or agreement termination, whichever occurs first.
3. A landowner shall make a Section 5(5) request within 90 days of: (1) abandonment; (2) receipt of the operator’s decommissioning notice; or (3) agreement termination, whichever comes first.
4. The operator and landowner may modify Section 5 requirements by written, notarized agreement.

Section 7. Financial Assurance.

1. The decommissioning plan shall provide financial assurance through a surety or performance bond, parent company guarantee, or irrevocable letter of credit, determined by the applicant; cash is excluded. The instrument shall name the department as beneficiary and cover the required percentage of the approved decommissioning cost estimate.
2. Financial assurance shall equal at least the estimated cost of decommissioning the facility and restoring participating properties under the plan, less salvage value. Financial assurances provided in lease agreements should count towards the total amount, where appropriate.
3. An owner-retained, independent professional engineer shall calculate decommissioning cost and salvage value, including assumptions, labor, disposal, restoration, inflation, and technology-specific recycling or waste-management costs.
4. Financial assurance may be posted in increments but shall equal at least: (1) 25 percent of the required amount by the start of the tenth year of commercial operation; (2) 50 percent of the required amount by the start of the fifteenth year of commercial operation; and (3) 100 percent of the required amount by the start of the twentieth year of commercial operation.
5. The operator shall update the estimate every five years after the first ten years of operation and after any material expansion, repowering, transfer, or other cost-affecting change. Financial assurance shall meet the applicable subsection (4) percentage of the current estimate; any deficiency shall be cured within 90 days.
6. Financial assurance may not be canceled before decommissioning and restoration are complete unless compliant replacement assurance is effective by the cancellation date.
7. Upon transfer of ownership or control, existing financial assurance remains effective until the landowner and department receive compliant substitute assurance.
8. A political subdivision may not impose duplicative financial assurance requirements on a compliant operator.

Section 8. Enforcement; Remedies.

1. If the operator defaults, the department may inspect records and the site, order corrective action, and in the event of a failure to perform decommissioning activity, arrange decommissioning or restoration activity and draw on financial assurance.
2. Before ordering decommissioning work or drawing on financial assurance, the department shall provide written notice of default and a reasonable opportunity to cure.
3. If the operator misses a decommissioning deadline, as established under Section 6(1), the department or landowner may seek injunctive relief, specific performance, reasonable enforcement costs, and any other lawful remedy.
4. Financial-assurance proceeds shall fund only facility-related decommissioning, restoration, administration, or enforcement. The operator remains liable for any shortfall.
5. The department or landowner harmed by a violation of this act may seek injunctive relief in addition to any other lawful remedy.

Section 9. Rules.
The department may adopt rules necessary to implement this Act.

Section 10. Effective Date.
This Act takes effect on [EFFECTIVE DATE] and applies as provided in Section 3.