PRINTER'S NO. 2443
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2104
Session of
2021
INTRODUCED BY RAPP, METCALFE, ARMANINI, COOK, KAIL, SCHEMEL,
LEWIS DELROSSO, RYAN, PICKETT, SMITH, COX AND GLEIM,
NOVEMBER 23, 2021
REFERRED TO COMMITTEE ON ENVIRONMENTAL RESOURCES AND ENERGY,
NOVEMBER 23, 2021
AN ACT
Amending Title 27 (Environmental Resources) of the Pennsylvania
Consolidated Statutes, providing for decommissioning of
alternative energy facilities.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 27 of the Pennsylvania Consolidated
Statutes is amended by adding a chapter to read:
CHAPTER 43
DECOMMISSIONING OF ALTERNATIVE ENERGY FACILITIES
Sec.
4301. Definitions.
4302. Requirements for alternative energy facility agreements.
4303. Financial assurance requirements.
4304. Financial assurance forms and decommissioning plans.
4305. Preemption of local ordinances and regulations .
4306. Applicability.
§ 4301. Definitions.
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The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Alternative energy facility." The development or
construction of a facility that utilizes solar energy or wind
energy to produce or distribute alternative energy.
"Alternative energy facility agreement." A lease agreement
between a grantee and a surface property owner that authorizes
the grantee to operate an alternative energy facility on leased
property.
"Commencement of construction." The moment when a grantee
issues a full notice to proceed order to the construction
contractor.
"Decommissioning plan." A document detailing the steps that
will be taken to decommission an alternative energy facility and
the amount, form and timing of financial assurance that will be
provided by a grantee.
"Department." The Department of Environmental Protection of
the Commonwealth.
"Grantee." The owner of an alternative energy facility on
leased property.
"Nameplate capacity." The maximum rated output of a
generator, prime mover or other electric power production
equipment under the specific conditions designated by the
manufacturer.
"Professional engineer." As defined in section 2 of the act
of May 23, 1945 (P.L.913, No.367), known as the Engineer, Land
Surveyor and Geologist Registration Law.
§ 4302. Requirements for alternative energy facility
agreements.
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(a) Requirements.--Except as provided under subsection (b),
an alternative energy facility agreement executed on or after
the effective date of this section shall provide that a grantee
is responsible for decommissioning the grantee's alternative
energy facility on the surface property owner's property in
accordance with this chapter no later than 18 months after the
facility has ceased producing electricity.
(b) Exception.--Subsection (a) shall not apply to a grantee
who is actively working to recommence production of electricity,
including an instance following the occurrence of a force
majeure or similar event.
§ 4303. Financial assurance requirements.
(a) Proof.--A grantee who executes an alternative energy
facility agreement on or after the effective date of this
section shall provide a decommissioning plan and submit proof of
financial assurance from a banking institution as defined in 7
Pa.C.S. § 6102 (relating to definitions) or a Federal credit
union as defined in 17 Pa.C.S. § 103 (relating to definitions)
to the county recorder of deeds. The financial assurance shall
conform to the requirements under this chapter to secure the
performance of the grantee's obligation to decommission the
grantee's alternative energy facility.
(b) Amount.--The amount of financial assurance shall be
equal to the cost of decommissioning the alternative energy
facility in accordance with section 4304(b) (relating to
financial assurance forms and decommissioning plans) and shall
be calculated and updated every five years by a third-party
professional engineer retained by the grantee from a list of
professional engineers compiled by the department and published
on the department's publicly accessible Internet website. The
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amount of financial assurance shall not be calculated to be less
than $10,000 per megawatt as measured in nominal AC nameplate
capacity for an alternative energy facility .
(c) Delivery.--A grantee shall deliver a decommissioning
plan and proof of financial assurance to the county recorder of
deeds in accordance with the following:
(1) No later than 30 days before the commencement of
construction of the alternative energy facility, the grantee
shall provide the decommissioning plan and proof of financial
assurance to the county recorder of deeds in an amount equal
to 20% of the cost of decommissioning as determined by a
third-party professional engineer.
(2) On or before the fifth anniversary of the
commencement of construction of the alternative energy
facility, the grantee shall provide an updated
decommissioning plan and proof of financial assurance to the
county recorder of deeds in an amount equal to 40% of the
cost of decommissioning as determined by a third-party
professional engineer.
(3) On or before the tenth anniversary of the
commencement of construction of the alternative energy
facility, the grantee shall provide an updated
decommissioning plan and proof of financial assurance to the
county recorder of deeds in an amount equal to 60% of the
cost of decommissioning as determined by a third-party
professional engineer.
(4) On or before the fifteenth anniversary of the
commencement of construction of the alternative energy
facility, the grantee shall provide an updated
decommissioning plan and proof of financial assurance to the
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county recorder of deeds in an amount of 80% of the cost of
decommissioning as determined by a third-party professional
engineer.
(5) On or before the twentieth anniversary of the
commencement of construction of the alternative energy
facility, the grantee shall provide an updated
decommissioning plan and proof of financial assurance to the
county recorder of deeds in an amount equal to 100% of the
cost of decommissioning as determined by a third-party
professional engineer.
(d) Financial assurance methods.--Acceptable methods of
financial assurance shall include a bond or an escrow account.
§ 4304. Financial assurance forms and decommissioning plans.
(a) Forms.--
(1) Within 180 days of the effective date of this
section, the department shall, by regulation and in
consultation with the alternative energy facility industry,
develop a provisional standard form for a decommissioning
plan and financial assurance to be filed with the county
recorder of deeds in accordance with this chapter. In order
to facilitate the prompt implementation of this chapter,
regulations promulgated to develop a provisional standard
form under this paragraph shall be deemed temporary
regulations. Temporary regulations promulgated under this
paragraph shall not be subject to any of the following:
(i) Section 612 of the act of April 9, 1929
(P.L.177, No.175), known as The Administrative Code of
1929.
(ii) Sections 201, 202, 203, 204 and 205 of the act
of July 31, 1968 (P.L.769, No.240), referred to as the
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Commonwealth Documents Law.
(iii) Sections 204(b) and 301(10) of the act of
October 15, 1980 (P.L.950, No.164), known as the
Commonwealth Attorneys Act.
(iv) The act of June 25, 1982 (P.L.633, No.181),
known as the Regulatory Review Act .
(2) After the promulgation of the temporary regulations
under paragraph (1), the department shall, by regulation and
in consultation with the alternative energy facility
industry, develop a final standard form for a decommissioning
plan and financial assurance to be filed with the county
recorder of deeds in accordance with this chapter. The
temporary regulations under paragraph (1) shall expire upon
the promulgation of the final regulations under this
paragraph, or two years after the effective date of this
section, whichever is later.
(b) Contents.--The provisional standard form and final
standard form under subsection (a) shall include all of the
following provisions:
(1) Unless the surface property owner and grantee
mutually agree in writing on an alternative condition for
restoring the property, the grantee's decommissioning plan
shall provide for all of the following:
(i) The removal of nonutility-owned equipment,
conduits, structures, fencing and foundations to a depth
of no less than three feet below grade. The grantee shall
not be required to remove equipment and materials that
the public utility requires to remain onsite.
(ii) The removal of graveled areas and access roads
unless the surface property owner requests in writing for
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graveled areas and access roads to stay in place.
(iii) The restoration of the property to a condition
reasonably similar to the property's condition before the
commencement of construction, including the replacement
of top soil removed or eroded on previously productive
agricultural land.
(iv) The reseeding of a cleared area, unless
requested in writing by the surface property owner to not
reseed due to plans for agricultural planting.
(2) In accordance with section 4303(c)(5) (relating
financial assurance requirements), on or before the twentieth
anniversary of the commencement of construction of the
alternative energy facility, the updated decommissioning plan
shall include an estimate of the materials to be removed that
will be salvaged, recycled, refurbished or disposed of in a
landfill. No more than 20% of the total combined mass of an
alternative energy facility may enter into a landfill as part
of the grantee's decommissioning plan. For the purpose of
determining the total combined mass under this paragraph, the
total combined mass shall include wind turbines, solar
photovoltaic modules, wind turbine blades, meteorological
towers, guy wires, auxiliary equipment and steel support
structures. Cement support structures shall not be considered
when determining the total combined mass under this
paragraph.
(3) The financial assurance specified under section
4303(c).
§ 4305. Preemption of local ordinances and regulations .
The regulation of the decommissioning of alternative energy
facilities is a matter of general Statewide interest that
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requires uniform Statewide regulation. This chapter and the
regulations promulgated under this chapter constitute a
comprehensive plan with respect to all aspects of alternative
energy facility agreements, financial assurance and
decommissioning plans associated with alternative energy
facilities within this Commonwealth. Any county, municipal or
other local government ordinance or regulation that materially
impedes the purposes of this chapter shall be preempted and
shall be without force and effect.
§ 4306. Applicability.
This chapter shall not apply to any of the following:
(1) A nonutility owner or operator of a net metered
distributed generation system with a nameplate capacity of
not greater than 3,000 kilowatts.
(2) An owner or operator of a farm who owns and operates
an alternative energy facility on the farm premises,
regardless of the location or consumption of the energy
generated.
Section 2. This act shall take effect as follows:
(1) The following shall take effect immediately:
(i) The addition of 27 Pa.C.S. § 4304.
(ii) This section.
(2) The remainder of this act shall take effect in 180
days.
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