PRINTER'S NO. 180
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
211
Session of
2023
INTRODUCED BY YAW, DUSH, BROOKS, STEFANO, MARTIN, HUTCHINSON AND
J. WARD, JANUARY 31, 2023
REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY, JANUARY 31, 2023
AN ACT
Amending Title 27 (Environmental Resources) of the Pennsylvania
Consolidated Statutes, in environmental protection, providing
for decommissioning of solar 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 SOLAR ENERGY FACILITIES
Sec.
4301. Definitions.
4302. Decommissioning requirements in solar energy facility
agreements.
4303. Financial assurance requirements in solar energy facility
agreements.
4304. Form and content of decommissioning plans.
4305. Prevention of forced labor.
4306. Preemption of local ordinances and regulations.
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4307. Applicability.
§ 4301. Definitions.
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:
"Commencement of construction." The moment when a grantee
issues a full notice to proceed order to the construction
contractor.
"Decommissioning plan." A document on file with the county
recorder of deeds detailing the steps that will be taken to
decommission a solar energy facility and the amount, form and
timing of financial assurance.
"Department." The Department of Environmental Protection of
the Commonwealth.
"Grantee." The owner of a solar energy facility on leased
property.
"Professional engineer." As defined in section 2(e) of the
act of May 23, 1945 (P.L.913, No.367), known as the Engineer,
Land Surveyor and Geologist Registration Law.
"Solar energy facility." The development or construction of
a facility that utilizes solar energy to produce or distribute
energy.
"Solar energy facility agreement." A lease agreement between
a grantee and a surface property owner that authorizes the
grantee to operate a solar energy facility on leased property.
§ 4302. Decommissioning requirements in solar energy facility
agreements.
A solar energy facility agreement executed after the
effective date of this section shall provide that the grantee is
responsible for decommissioning the grantee's solar energy
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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, except for an instance when the
grantee is actively working to recommence production of
electricity, including an instance after the occurrence of a
force majeure or similar event.
§ 4303. Financial assurance requirements in solar energy
facility agreements.
(a) Proof of financial assurance.--A grantee who executes a
solar energy facility agreement on or after the effective date
of this subsection shall provide a decommissioning plan, submit
proof of financial assurance to the county recorder of deeds and
provide notice to the surface property owner party to the solar
energy facility agreement. The financial assurance shall conform
to the requirements of this chapter to secure the performance of
the grantee's obligation to decommission the grantee's solar
energy facility. If the grantee does not fulfill the grantee's
obligation to decommission the solar energy facility, the
financial assurance shall be made payable to the surface
property owner.
(b) Amount of financial assurance.--The amount of financial
assurance shall be equal to the estimated cost to decommission
the solar energy facility. The amount of financial assurance
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.
(c) Delivery.--A grantee shall deliver a decommissioning
plan and proof of financial assurance to the county recorder of
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deeds in accordance with the following:
(1) No later than 30 days before the commencement of
construction of the solar 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 10% of the estimated 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 solar 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 10% of the estimated cost of
decommissioning as determined by a third-party professional
engineer.
(3) On or before the 10th anniversary of the
commencement of construction of the solar 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 estimated cost of
decommissioning, less the facility's salvage value, except
that the required proof of financial assurance shall not be
less than 25% of the total estimated cost of decommissioning
as determined by a third-party professional engineer.
(4) On or before the 15th anniversary of the
commencement of construction of the solar 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 estimated cost of
decommissioning, less the facility's salvage value, except
that the required proof of financial assurance shall not be
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less than 40% of the total estimated cost of decommissioning,
as determined by a third-party professional engineer.
(5) On or before the 20th anniversary of the
commencement of construction of the solar 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 80% of the estimated cost of
decommissioning, less the facility's salvage value, except
that the required proof of financial assurance shall not be
less than 60% of the total estimated cost of decommissioning,
as determined by a third-party professional engineer.
(6) On or before the 25th anniversary of the
commencement of construction of the solar 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 estimated cost of
decommissioning, less the facility's salvage value, except
that the required proof of financial assurance shall not be
less than 70% of the total estimated cost of decommissioning,
as determined by a third-party professional engineer.
(7) The calculation of the salvage value of a solar
energy facility by a third-party professional engineer shall
be limited to salvageable steel, aluminum and copper.
(d) Forms of financial assurance.--Any of the following
shall be an acceptable form of financial assurance:
(1) An escrow account.
(2) A certificate of deposit or an automatically
renewable, irrevocable letter of credit from a financial
institution chartered or authorized to do business in this
Commonwealth and regulated and examined by a Federal agency
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or the Commonwealth.
(3) A bond executed between the grantee and a corporate
surety licensed to do business in this Commonwealth.
(4) A negotiable bond of the Federal Government, the
Commonwealth or a municipality within this Commonwealth.
(e) Transferability.--A decommissioning plan, the associated
financial assurance and the salvage value of a solar energy
facility to reduce the financial assurance may not be separated
from the solar energy facility through a change in grantee
ownership. The new grantee shall submit proof of financial
assurance in accordance with subsection (a). The prior grantee
may not release or revoke the prior grantee's financial
assurance until the new grantee's proof of financial assurance
is filed with the county recorder of deeds and notice is
provided to the surface property owner party to the solar energy
facility agreement.
§ 4304. Form and content of decommissioning plans.
(a) Development of form.--
(1) W ithin 180 days of the effective date of this
paragraph, the department shall, by regulation and in
consultation with the solar energy 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
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(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
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 solar energy 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 paragraph, 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 include all of the following:
(i) The removal of all non-utility-owned equipment,
conduits, structures, fencing and foundations to a depth
of at least three feet below grade. The grantee shall not
be required to remove equipment and materials that the
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public utility requires to remain on site.
(ii) The removal of graveled areas and access roads,
unless the surface property owner requests in writing for
graveled areas and access roads to stay in place.
(iii) T he 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) The required financial assurance under section 4303
(relating to financial assurance requirements in solar energy
facility agreements).
(3) The grantee's attestation required under section
4305 (relating to prevention of forced labor).
§ 4305. Prevention of forced labor.
The grantee of a solar energy facility commenced on or after
the effective date of this section shall attest to the grantee's
compliance with the Uyghur Forced Labor Prevention Act (Public
Law 117-78, 135 Stat. 1525) or any other Federal law, rule or
regulation that restricts the import or use of goods, wares,
articles or merchandise mined, produced or manufactured wholly
or in part with forced labor.
§ 4306. Preemption of local ordinances and regulations.
The regulation of the decommissioning of solar energy
facilities is a matter of general Statewide interest that
requires uniform Statewide regulation. This chapter and the
regulations promulgated under this chapter constitute a
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comprehensive plan with respect to all aspects of solar energy
facility agreements, financial assurance and decommissioning
plans associated with solar 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.
§ 4307. Applicability.
The requirements under this chapter shall not apply to any of
the following:
(1) A solar energy facility with a nameplate capacity of
two megawatts AC or less.
(2) A customer- generator as defined in section 2 of the
act of November 30, 2004 (P.L.1672, No.213), known as the
Alternative Energy Portfolio Standards Act.
(3) An owner or operator of a normal agricultural
operation as defined in section 2 of the act of June 10, 1982
(P.L.454, No.133), referred to as the Right-to-Farm Law, who
owns and operates a solar energy facility on the normal
agricultural operation 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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