Hall Bill Puts 500-Foot Setbacks On Wind And Solar Plants

The text as introduced · 3,562 words

By: Hall
S.B. No. 1979

A BILL TO BE ENTITLED

AN ACT

relating to renewable energy generation facilities; authorizing

fees.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subchapter C, Chapter 15, Utilities Code, is

amended by adding Section 15.053 to read as follows:

Sec. 15.053. COMPLAINT REGARDING RENEWABLE ENERGY

GENERATION FACILITIES. (a) An affected person may complain to the

commission in writing setting forth an act or omission by an owner

or operator of renewable generation in violation or claimed

violation of Subchapter F, Chapter 35.

(b) The commission shall keep for a reasonable period an

information file about each complaint filed with the commission

relating to an owner or operator of battery energy storage.

(c) The commission, at least quarterly and until final

disposition of the written complaint, shall notify the parties to

the complaint of the status of the complaint unless the notice would

jeopardize an undercover investigation.

SECTION 2. Chapter 35, Utilities Code, is amended by adding

Subchapter F to read as follows:

SUBCHAPTER F. RENEWABLE ENERGY GENERATION FACILITY PERMIT

Sec. 35.201. DEFINITIONS; APPLICABILITY. (a) In this

subchapter:

(1) "Battery energy storage facility" includes a

facility or equipment used to support the operation of battery

energy storage, including an underground or aboveground electrical

transmission or communications line, an electric transformer,

telecommunications equipment, a road, a meteorological tower, or a

maintenance yard.

(2) "Battery energy storage facility agreement" means

a lease agreement between a grantee and a landowner that authorizes

the grantee to operate a battery energy storage facility on the

leased property.

(3) "Grantee" means a person who:

(A) leases property from a landowner; and

(B) operates a battery energy storage facility on

the property.

(4) "Permit holder" means a person who holds a permit

issued under this subchapter.

(5) "Person" includes an electric cooperative and a

municipally owned utility.

(6) "Renewable energy generation facility" for

purposes of this chapter means:

(A) a wind power facility as defined by Section

301.0001;

(B) a solar power facility as defined by Section

302.0001;

(C) a battery energy storage facility; or

(D) a facility that 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.

(b) The permit requirements of this subchapter apply to a

renewable energy generation facility regardless of whether the

facility is the subject of a facility agreement entered into under

Chapter 301 or 302 or this subchapter.

(c) This subchapter applies only to a renewable energy

generation facility that is intended to be used to sell energy or

ancillary services at wholesale.

Sec. 35.202. PERMIT REQUIRED. (a) A person may not

interconnect a renewable energy generation facility to a

transmission facility unless the person holds a permit to operate a

renewable energy generation facility issued by the commission under

this subchapter.

(b) The commission by rule shall require each permitted

renewable energy generation facility to be installed only in a

location that:

(1) for a solar power facility, is at least:

(A) 500 feet from any property line, unless the

permit holder has obtained a written waiver from each owner of

property located less than 500 feet from the permitted facility;

and

(B) 500 feet from any habitable structure, unless

the permit holder has obtained a written waiver from each owner of

the habitable structure;

(2) for a wind power facility, is at least twice the

height of the wind turbine, including the blades of the turbine,

from the property line of each property that borders the property on

which the permitted facility is located, unless the permit holder

has obtained a written waiver from each owner of property located in

the applicable area; and

(3) for a battery energy storage facility, is at

least:

(A) 500 feet from any property line, unless the

permit holder has obtained a written waiver from each owner of

property located less than 500 feet from the permitted facility;

and

(B) 500 feet from:

(i) public ways;

(ii) buildings;

(iii) stored combustible materials;

(iv) hazardous materials;

(v) high-piled stock; and

(vi) other exposure hazards not associated

with electrical grid infrastructure.

(c) The commission by rule shall require each permitted

renewable energy generation facility to be installed only in a

location that, in the event of an emergency at the site of the

permitted renewable energy generation facility, will not block the

only access point to a residential area. If an emergency could block

access to a residential area, a different access point to the

facility must be constructed.

(d) A person may apply for a permit under this subchapter by

filing with the commission:

(1) a description of the proposed location of the

renewable energy generation facility;

(2) a description of the type of renewable energy

generation facility;

(3) a statement identifying the fire department, as

defined by Section 419.021, Government Code, volunteer fire

department, fire marshal, or other first responder entity that may

reasonably be expected to be the primary first responder to a fire

at the location of the renewable energy generation facility;

(4) a statement that the person has provided written

notice to the entity identified in Subdivision (3) of the

applicant's intent to install a renewable energy generation

facility;

(5) evidence of insurance coverage sufficient to

insure against losses arising from the operation of the renewable

energy generation facility; and

(6) any other information required by commission rule.

(e) When an application for a permit, or an amendment to a

permit issued under this section, is filed, the commission shall

give notice of the application to the county judge of the county in

which all or a majority of the renewable energy generation facility

is proposed to be located. The county shall publish the notice on

their website in perpetuity and, in accordance with Chapter 2051,

Government Code, in a newspaper for a minimum of three consecutive

days.

(f) The commission may hold one or more public meetings on a

permit application in the county in which the renewable energy

generation facility is proposed to be located. The commission

shall hold a public meeting:

(1) on the request of a member of the legislature who

represents the area in which the renewable energy generation

facility is proposed to be located; or

(2) if the commission determines there is substantial

public interest in the proposed permit.

(g) The commission by order or rule may delegate to the

executive director or another commission employee the authority to

hold a public meeting under this section.

(h) The commission may approve an application for a permit

only if the commission finds that:

(1) issuance of the permit would not violate state or

federal law; and

(2) the location of the proposed renewable energy

generation facility complies with rules adopted under Subsections

(b) and (c).

(i) The commission by rule shall adopt a fee to be imposed on

each permit applicant to cover costs associated with implementing

this section.

(j) For purposes of this subchapter:

(1) a provision of Subchapter B or E, Chapter 14, that

authorizes the commission to regulate a public utility also applies

to a person required to obtain a permit under this section,

including an electric cooperative or a municipally owned utility;

and

(2) a reference in Chapter 15 to a person includes a

person required to obtain a permit under this section, including an

electric cooperative or a municipally owned utility.

Sec. 35.203. FIRE SAFETY STANDARDS FOR BATTERY ENERGY

STORAGE. (a) The commission shall adopt and periodically update

fire safety standards and testing requirements for battery energy

storage operating under a permit issued under this subchapter. The

standards and requirements must be based on:

(1) model code requirements for battery energy storage

established by UL Solutions, such as UL 9540 and UL 9540A

performance criteria;

(2) minimum standards related to the installation,

design, and maintenance of stationary energy storage systems and

electrical equipment established by the National Fire Protection

Association, such as NFPA 70 and NFPA 855;

(3) fire hazard management standards, such as the

International Fire Code and NFPA 1;

(4) explosion prevention and mitigation standards,

such as NFPA 68 and NFPA 69;

(5) fire and explosion prevention standards for

battery energy storage that is integrated with a photovoltaic

energy system, such as NFPA 585;

(6) lithium ion battery safety standards, such as UL

1642; and

(7) industry best practices for security fencing and

signage near battery energy storage.

(b) Each permit holder that owns or operates permitted

battery energy storage shall ensure that the storage meets the fire

safety standards and testing requirements adopted by the commission

under Subsection (a) at the time of interconnection.

(c) On request by a municipality in which the battery energy

storage is located, or a county in which the battery energy storage

is located if the storage is in an unincorporated area, the permit

holder shall contract at the permit holder's expense with an

independent, third-party engineer licensed in this state to:

(1) evaluate the design, safety, and installation of

the battery energy storage to ensure compliance with the

requirements of this section;

(2) produce a written report on the evaluation; and

(3) provide the written report described by

Subdivision (2) to the requesting municipality or county.

Sec. 35.204. EMERGENCY OPERATIONS PLANS FOR RENEWABLE

ENERGY GENERATION FACILITIES. (a) This section applies to a permit

holder that owns or operates a renewable energy generation

facility.

(b) A permit holder to which this section applies shall file

with the commission a site-specific emergency operations plan for

each facility owned or operated by the permit holder, including

emergency response and communications protocols for an equipment

failure incident.

(c) The permit holder shall offer to local fire departments

training regarding responding to a fire at the facility.

Sec. 35.205. EVIDENCE OF COMPLIANCE WITH STANDARDS.

Evidence of compliance with state or local regulations is not

sufficient to support a finding by a trier of fact that an owner or

operator of renewable generation equipment or facilities was not

negligent in an action arising out of a malfunction of or mitigation

of a fire caused by renewable generation equipment or facilities.

Sec. 35.206. WAIVER VOID; REMEDIES. (a) A provision of a

renewable generation facility agreement that purports to waive a

right or exempt a grantee from a liability or duty established by

Section 35.207 or 35.208 is void.

(b) A person who is harmed by a violation of Section 35.207

or 35.208 is entitled to appropriate injunctive relief to prevent

further violation of Section 35.207 or 35.208.

(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. 35.207. REQUIRED AGREEMENT PROVISIONS ON FACILITY

REMOVAL. (a) A renewable generation facility agreement must

provide that the grantee is responsible for removing the grantee's

renewable generation 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

piece of renewable generation equipment, including any

transformers or substations;

(2) for each foundation of renewable generation

equipment, including a 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 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 renewable generation

facility is no longer capable of generating or storing electricity

in commercial quantities; or

(2) the date the landowner receives written notice of

intent to decommission the renewable generation facility from the

grantee.

Sec. 35.208. REQUIRED AGREEMENT PROVISIONS ON FINANCIAL

ASSURANCE. (a) A renewable generation facility agreement must

provide that the grantee shall obtain and deliver to the commission

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

renewable generation facilities located on the landowner's

property as described by Section 35.207. The financial assurance

may be 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

renewable generation 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 renewable generation facilities,

less any portion of the value of the renewable generation

facilities pledged to secure outstanding debt.

(c) The agreement must provide that:

(1) the estimated cost of removing the renewable

generation 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 renewable generation 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 the date the agreement begins, or the permit may

be denied or revoked.

(f) The grantee may not cancel financial assurance before

the date the grantee has completed the grantee's obligation to

remove the grantee's renewable generation facilities located on the

landowner's property as required by this chapter, unless the

grantee provides the commission with replacement financial

assurance at the time of or before the cancellation. In the event

of a transfer of ownership of the grantee's renewable generation

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.

Sec. 35.209. 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 subchapter.

(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 this subchapter. All of the financial

assurance shall be released if all of the grantee's obligations are

completed.

(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. 35.210. 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 subchapter if:

(1) the grantee has not completed the grantee's

obligations under the agreement entered into under this subchapter;

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. 35.211. COMMISSION AUTHORITY. (a) The commission may

not issue to a grantee whose financial assurance was forfeited

under Section 35.210 any permit, certificate, or registration under

other law that authorizes the grantee to operate a generation

facility to which this subchapter 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 subchapter, 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 3. The changes in law made by this Act apply only to

a renewable generation 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 4. As soon as practicable after the effective date

of this Act, the Public Utility Commission of Texas shall adopt

rules to effectuate the changes in law made by this Act.

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.