HB3809 - Relating to the removal of battery energy storage facilities.

      H.B. No. 3809         AN ACT   relating to the removal of battery energy storage facilities.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Title 6, Utilities Code, is amended by adding   Chapter 303 to read as follows:   CHAPTER 303. BATTERY ENERGY STORAGE FACILITY AGREEMENTS           Sec. 303.0001.  DEFINITIONS. In this chapter:                 (1)  "Battery energy storage facility" includes:                       (A)  a battery energy storage resource; and                       (B)     any facility or equipment necessary to   support the operation of a battery energy storage resource, other   than a facility or equipment owned by an electric utility, as   defined by Section 31.002.                 (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)     "Battery energy storage resource" means an   electrochemical device, whether connected at the transmission or   distribution level, with a capacity of one megawatt hour or greater   that charges from the grid or a colocated generation resource and   discharges that energy at a later time.                 (4)     "Battery operation date" means the date on which a   battery energy storage resource is first used for its intended   purpose.                 (5)     "Grantee" means a person, other than an electric   utility as defined by Section 31.002, who:                       (A)  leases property from a landowner; and                       (B)     operates a battery energy storage facility on   the property.                 (6)     "Recycle" means the processing, including   disassembling, dismantling, and shredding of battery energy   storage cells, modules or other equipment, or their components, to   recover a usable product.           Sec.   303.0002.     APPLICABILITY. Except as provided by   Section 303.0004(c), this chapter applies only to an agreement that   authorizes a grantee to operate a battery energy storage facility   that is not subject to Chapter 301 or 302.           Sec.   303.0003.     WAIVER VOID; REMEDIES. (a) A provision of a   battery energy storage 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.   303.0004.     REQUIRED AGREEMENT PROVISIONS ON FACILITY   REMOVAL. (a) A battery energy storage facility agreement must   provide that the grantee is responsible for removing the battery   energy storage facility 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   battery energy storage resource, transformer, and substation   installed and owned by the grantee;                 (2)     for each foundation installed in the ground for a   battery energy storage resource, transformer, or substation   installed and owned by the grantee:                       (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 and owned by the   grantee:                       (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 and owned by the   grantee on the property.           (b)     The agreement must provide that the grantee is   responsible for:                 (1)     collecting and reusing or recycling, or shipping   for reuse or recycling, all components of the battery energy   storage facility practicably capable of being reused or recycled,   in accordance with any other applicable laws or regulations; and                 (2)     properly disposing of components of the battery   energy storage facility not practicably capable of being reused or   recycled:                       (A)     at a facility authorized under state and   federal law to dispose of hazardous substances for a component   considered hazardous under those laws; or                       (B)     for nonhazardous components, at a municipal   solid waste landfill or other appropriate waste disposal facility   authorized under state and federal law to dispose of that type of   component.           (c)     A wind power facility agreement entered into under   Chapter 301 or solar power facility agreement entered into under   Chapter 302 that authorizes the operation of a battery energy   storage facility must include the provisions described by   Subsection (b) and the financial assurance required by those   chapters must be sufficient to secure the performance of the   grantee's obligations under that subsection, in the manner provided   by Section 303.0005.           (d)     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.           (e)     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.           (f)     The landowner shall make a request under Subsection (d)   or (e) not later than the 180th day after the later of:                 (1)     the date on which the landowner receives from the   grantee via certified mail a copy of a notification of intent to   suspend operations filed with a grid operator indicating an intent   to permanently cease operations; or                 (2)     the date the landowner receives written notice of   intent to decommission the battery energy storage facility from the   grantee.           Sec.   303.0005.     REQUIRED AGREEMENT PROVISIONS ON FINANCIAL   ASSURANCE. (a) A battery energy storage facility agreement must   provide that the grantee shall obtain and deliver to the landowner   evidence of financial assurance that conforms to the requirements   of this section to secure the performance of the grantee's   obligations under Section 303.0004. Acceptable forms of financial   assurance 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 reasonably acceptable to the   landowner.           (b)     The amount of financial assurance must be at least equal   to the estimated amount by which the cost of removing the battery   energy storage facilities from the landowner's property, recycling   or disposing of all the components of the battery energy storage   facilities, and restoring the property to as near as reasonably   possible the condition of the property as of the date the agreement   begins, as described by Section 303.0004, exceeds the salvage value   of the battery energy storage facilities, less any portion of the   value of the battery energy storage facilities pledged to secure   outstanding debt.           (c)  The agreement must provide that:                 (1)     the estimated cost of removing the battery energy   storage facilities from the landowner's property, recycling or   disposing of all the components of the battery energy storage   facilities, and restoring the property to as near as reasonably   possible the condition of the property as of the date the agreement   begins, as described by Section 303.0004, and the estimated salvage   value of the battery energy storage facilities must be determined   by an independent, third-party professional engineer licensed in   this state;                 (2)     the grantee must deliver to the landowner the   estimated cost of removal and recycling or disposal of the battery   energy storage facilities and the salvage value on or before the   10th anniversary of the battery operation date of the grantee's   battery energy storage resources located on the landowner's   property; and                 (3)     the grantee must deliver an updated estimate of   the cost and salvage value described by Subdivision (2) at least   once every five years after the initial estimate for the remainder   of the term of the agreement.           (d)     The grantee is [Text truncated for display. 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