89R4312 JXC-D     By: Hall S.B. No. 1478       A BILL TO BE ENTITLED   AN ACT   relating to the removal of certain power facilities operated on   leased property.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Chapter 301, Utilities Code, is transferred to   Subtitle B, Title 5, Health and Safety Code, redesignated as   Chapter 375, Health and Safety Code, and amended to read as follows:   CHAPTER 375 [301].  [WIND] POWER FACILITY AGREEMENTS AND FINANCIAL   ASSURANCE          Sec. 375.0001 [301.0001].  DEFINITIONS. In this chapter:                (1)  "Commission" means the Texas Commission on   Environmental Quality.                (2)  "Electric energy storage facility agreement"   means a lease agreement between a grantee and a landowner that   authorizes the grantee to operate an electric energy storage   facility on the leased property.                (3)  "Grantee" means a person who[:                      [(A)]  leases property from a landowner[; and                      [(B)  operates a wind power facility on the   property].                (4)  "Renewable power facility" means a facility that:                      (A)  generates electric energy using a renewable   energy technology, as defined by Section 39.916, Utilities Code,   other than a technology that relies exclusively on wind or solar   energy; and                      (B)  is not an electric energy storage facility.                (5)  "Renewable power facility agreement" means a lease   agreement between a grantee and a landowner that authorizes the   grantee to operate a renewable power facility on the leased   property.                (6)  "Solar energy device" has the meaning assigned by   Section 185.001, Utilities Code.                (7)  "Solar power facility" includes:                      (A)  a solar energy device; and                      (B)  a facility or equipment, other than a   facility or equipment owned by an electric utility, as defined by   Section 31.002, Utilities Code, used to support the operation of a   solar energy device, 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, or a maintenance yard.                (8)  "Solar power facility agreement" means a lease   agreement between a grantee and a landowner that authorizes the   grantee to operate a solar power facility on the leased property.                (9) [(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.                (10) [(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. 375.0002.  APPLICABILITY. This chapter applies only to   an electric energy storage facility, a renewable power facility, a   solar power facility, or a wind power facility that is intended to   provide energy or ancillary services at wholesale for a power grid.          Sec. 375.0003 [301.0002].  WAIVER VOID; REMEDIES. (a) A   provision of an electric energy storage facility agreement, a   renewable power facility agreement, a solar power facility   agreement, or 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. 375.0004 [301.0003].  REQUIRED AGREEMENT PROVISIONS ON   WIND POWER 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. 375.0005.  REQUIRED AGREEMENT PROVISIONS ON SOLAR POWER   FACILITY REMOVAL.  (a)  A solar power facility agreement must   provide that the grantee is responsible for removing the grantee's   solar 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 each   solar energy device, transformer, and substation;                (2)  for each foundation of a solar energy device,   transformer, or substation 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 soil of the same type or a   similar type as the predominant soil 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 soil of the same type or a   similar type as the predominant soil 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 soil of the same type or a   similar type as the predominant soil 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 soil of the same type or a similar type as   the predominant soil 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 solar 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 solar power facility from the grantee.          Sec. 375.0006.  REQUIRED AGREEMENT PROVISIONS ON ELECTRIC   ENERGY STORAGE OR RENEWABLE POWER FACILITY REMOVAL.  An electric   energy storage facility agreement or renewable power facility   agreement must provide that the grantee is responsible for:                 (1)  removing the grantee's electric energy storage   facilities or renewable power facilities, as applicable, from the   landowner's property; and                (2)  restoring the property to as near as reasonably   possible the condition of the property as of the date the agreement   begins.          Sec. 375.0007 [301.0004].  REQUIRED AGREEMENT PROVISIONS ON   FINANCIAL ASSURANCE. (a)  An electric energy storage facility   agreement, a renewable power facility agreement, a solar power   facility agreement, or a [A] wind power facility agreement must   provide that the grantee shall obtain and deliver to the commission    [landowner] evidence of financial assurance payable to the   landowner that conforms to the requirements of this section to   secure the performance of the grantee's obligation to remove the   grantee's electric energy storage facilities, renewable power   facilities, solar power facilities, or wind power facilities   located on the landowner's property as required by this chapter [as   described by Section 301.0003].  The [Acceptable forms of]   financial assurance may be [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 and the   commission 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 to the commission not later than   the 30th day after [earlier of:                [(1)]  the date the [wind power facility] agreement   begins [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 as required [in the manner provided] by this   chapter, unless the grantee provides the commission [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 commission [landowner].          Sec. 375.0008.  RELEASE OF FINANCIAL ASSURANCE TO GRANTEE.   (a)  At any time, a grantee may file an application with the   commission for the release of all or part of a bond or other   financial assurance provided to the commission by the grantee for a   landowner under this chapter.          (b)  The application must be on a form prescribed by the   commission and, in addition to other information the commission may   require, must include the type and the approximate date of removal   and restoration work performed and a description of the results   achieved.          (c)  The grantee shall provide a copy of the application to   the landowner not later than the 30th day after the date the grantee   files the application with the commission.           (d)  Not later than the 45th day after the date the grantee   files the application, the commission shall conduct an inspection   and evaluation of the removal and restoration work performed.          (e)  The commission may release all or part of the financial   assurance if the commission determines that the grantee has   completed all or part of the grantee's obligations under the   agreement entered into under Section 375.0004, 375.0005, or   375.0006, as applicable.          (f)  If the commission disapproves the application for   release of the financial assurance, the commission shall notify the   grantee in writing of the reasons for disapproval and recommend   corrective actions necessary to secure the release of the financial   assurance.          Sec. 375.0009.  FORFEITURE OF FINANCIAL ASSURANCE TO   LANDOWNER. (a)  A landowner may file an application with the   commission for the forfeiture of all or part of a bond or other   financial assurance provided to the commission by a grantee for the   landowner under this chapter if:                 (1)  the grantee has not completed the grantee's   obligations under the agreement entered into under Section   375.0004, 375.0005, or 375.0006, as applicable; and                (2)  the facility that is the subject of the agreement   is no longer being used by the grantee to provide energy or   ancillary services at wholesale for a power grid in the manner   provided by the agreement.          (b)  The application must be on a form prescribed by the   commission.          (c)  The landowner shall provide a copy of the application to   the grantee not later than the 30th day after the date the landowner   files the application with the commission.           (d)  Not later than the 45th day after the date the landowner   files the application, the commission shall conduct an inspection   and evaluation of the property for which the financial assurance   was provided.          (e)  The commission may approve the forfeiture of all or part   of the financial assurance if the commission determines that:                (1)  the facility that is the subject of the agreement   is no longer being used in the manner described by Subsection   (a)(2); and                (2)  the forfeiture is necessary to compensate the   landowner for any remaining removal and restoration work the   grantee was required to but did not complete under the agreement.          (f)  If the commission disapproves the application for   forfeiture of the financial assurance, the commission shall notify   the landowner in writing of the reasons for disapproval.          Sec. 375.0010.  COMMISSION AUTHORITY. (a)  The commission   shall notify the Public Utility Commission of Texas if the   commission requires forfeiture of financial assurance under   Section 375.0009.  The commission and the Public Utility Commission   of Texas may not issue to a grantee whose financial assurance was   forfeited under Section 375.0009 any permit, certificate, or   registration under other law that authorizes the grantee to operate   a generation facility to which this chapter applies or renew any   such permit, certificate, or registration.          (b)  In a suit for receivership, garnishment, or bankruptcy,   or in any other legal action affecting the assets of a grantee that   is a party to an agreement subject to this chapter, the commission   may:                (1)  inform the appropriate court and parties of the   commission's interest in obtaining notice of the proceedings; and                (2)  within the time prescribed by the applicable   statutes, rules, and court orders, intervene and participate in any   proceedings that affect a landowner not joined in the suit who is a   party to the agreement with the grantee.          SECTION 2.  Section 5.013(a), Water Code, is amended to read   as follows:          (a)  The commission has general jurisdiction over:                (1)  water and water rights including the issuance of   water rights permits, water rights adjudication, cancellation of   water rights, and enforcement of water rights;                (2)  continuing supervision over districts created   under Article III, Sections 52(b)(1) and (2), and Article XVI,   Section 59, of the Texas Constitution;                (3)  the state's water quality program including   issuance of permits, enforcement of water quality rules, standards,   orders, and permits, and water quality planning;                (4)  the determination of the feasibility of certain   federal projects;                (5)  the adoption and enforcement of rules and   performance of other acts relating to the safe construction,   maintenance, and removal of dams;                (6)  conduct of the state's hazardous spill prevention   and control program;                (7)  the administration of the state's program relating   to inactive hazardous substance, pollutant, and contaminant   disposal facilities;                (8)  the administration of a portion of the state's   injection well program;                (9)  the administration of the state's programs   involving underground water and water wells and drilled and mined   shafts;                (10)  the state's responsibilities relating to regional   waste disposal;                (11)  the responsibilities assigned to the commission   by Chapters 361, 363, 375, 382, 401, 505, 506, and 507, Health and   Safety Code; and                (12)  any other areas assigned to the commission by   this code and other laws of this state.          SECTION 3.  (a) The heading to Title 6, Utilities Code, is   repealed.          (b)  Chapter 302, Utilities Code, is repealed.          SECTION 4.  The changes in law made by this Act apply only to   an electric energy storage facility agreement, a renewable power   facility agreement, a solar power facility agreement, or a wind   power facility agreement entered into on or after the effective   date of this Act.  An agreement entered into before the effective   date of this Act is governed by the law applicable to the agreement   on the date the agreement was entered into, and that law is   continued in effect for that purpose.          SECTION 5.  This Act takes effect immediately if it receives   a vote of two-thirds of all the members elected to each house, as   provided by Section 39, Article III, Texas Constitution.  If this   Act does not receive the vote necessary for immediate effect, this   Act takes effect September 1, 2025.