The House Committee on Energy, Utilities and Telecommunications offers the following
substitute to HB 249:
A BILL TO BE ENTITLED
AN ACT
To amend Article 1 of Chapter 3 of Title 46 of the Official Code of Georgia Annotated,
relating to generation and distribution of electricity generally, so as to revise provisions
relating to solar power facility agreements; to revise provisions relating to the waiver of
certain requirements of such agreements; to authorize the Environmental Protection Division
of the Department of Natural Resources to issue cease and desist orders; to provide civil
penalties; to provide an exception; to revise and provide for definitions; to provide for an
effective date; to provide for related matters; to repeal conflicting laws; and for other
purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1.
Article 1 of Chapter 3 of Title 46 of the Official Code of Georgia Annotated, relating to
generation and distribution of electricity generally, is amended by revising Part 5, relating
to solar power facility agreements, as follows:
"Part 5
46-3-67.
As used in this part, the term:
(1) 'Commercial operations date' means the date on which a solar power facility
generates electrical energy for sale to an electric supplier. Such term does not include the
generation of electrical energy or other operations conducted before that date for purposes
of maintenance or testing.
(2) <ins>'Division' means the Environmental Protection Division of the Department of Natural
Resources.
(3)</ins> 'Electric supplier' has the same meaning as provided in Code Section 46-3-3.
<del>(3)(4)</del> 'Financial assurance' means a surety or performance bond that:
(A) Renews automatically; and
(B) Is issued by a company that is:
<ins>(i) Licensed as an insurance company under Title 33; and
(ii) Listed</ins> <del>listed</del> on the United States Department of the Treasury's List of Certified
Companies and that has a financial strength rating of at least an 'A' as rated by A.M.
Best Company, Inc.; Moody's Investors Service, Inc.; Standard and Poor's
Corporation; or a similar rating agency.
<del>(4)(5)</del> 'Grantee' means a person who leases property from a landowner and who operates
a solar power facility on said property.
<del>(5)(6)</del> 'Solar energy device' means a solar energy collector or solar energy system that
provides for the collection of solar energy or the subsequent use of such energy as
thermal, mechanical, or electrical energy.
<del>(6)(7)</del> 'Solar power facility' means a solar energy device that does not meet the definition
of solar technology pursuant to Code Section 46-3-62, or the integrated collection of such
devices, together with any equipment or other personal property and improvements under
common ownership that are used to support the operation of such a solar energy device
or solar energy devices, including, but not limited to, underground or aboveground
electrical transmission or communications lines, electric transformers, battery storage
facilities, telecommunications equipment, roads, meteorological towers, and maintenance
yards.
<del>(7)(8)</del> 'Solar power facility agreement' means any lease agreement for real property in
this state between a grantee and a landowner that authorizes the grantee to operate a solar
power facility on the leased property.
46-3-68.
(a) The provisions of this part shall only apply to solar power facility agreements that are
executed or renewed on or after July 1, 2024.
(b) <del>Any</del> <ins>Except as provided in subsection (e) of Code Section 46-3-69, any</ins> provision in
a solar power facility agreement that purports to waive a right or exempt a grantee from a
liability or duty established by this part shall be void.
(c) Any person who is harmed by a violation of this part shall be entitled to appropriate
injunctive relief to prevent further violation of this part.
(d) The provisions of this Code section are not exclusive. The remedies provided in this
Code section are in addition to any other procedures or remedies provided by law.
46-3-69.
(a) A solar power facility agreement shall provide that the grantee shall be responsible for
removing the grantee's solar power facilities from the landowner's property upon the
termination of the lease and that the grantee shall, in accordance with any other applicable
laws or regulations, safely:
(1) Clear, clean, and remove from the property all grantee owned <ins>or leased</ins> solar energy
devices and all grantee owned <ins>or leased</ins> equipment, personal property, and improvements
used to support such devices;
(2) For each foundation of a solar energy device, transformer, or substation installed on
the property 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 such removal is filled with
soil of the same type or a similar type as the predominant soil found on the property;
(3) For each cable, including power, fiber-optic, and communications cables, installed
underground 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 such 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 on the property by the grantee.
(b) A solar power facility agreement shall provide that, at the request of the landowner, the
grantee shall:
(1) Clear, clean, and remove each road constructed on the property by the grantee; and
(2) Ensure that each hole or cavity created in the ground by such removal is filled with
soil of the same type or a similar type as the predominant soil found on the property.
(c) A solar power facility agreement shall provide that, at the request of the landowner, the
grantee shall:
(1) Remove from the property all rocks more than 12 inches in diameter excavated
during the decommissioning or removal of the grantee's solar power facilities; and
(2) Ensure that:
(A) Each hole or cavity created in the ground by such decommissioning or 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, but not limited to, by reseeding
pastureland with native, naturalized, and introduced grasses and legumes <del>prescribed by
an appropriate governmental agency, if any</del> <ins>in accordance with the Manual for Erosion
and Sediment Control in Georgia published by the State Soil and Water Conservation
Commission.
</ins> (d) A landowner shall make any request provided by a solar power facility agreement
pursuant to subsection (b) or (c) of this Code section no later than 12 months after the later
of:
(1) The date on which the solar power <del>facility is</del> <ins>facilities are</ins> no longer capable of
generating electricity in commercial quantities, except when such inability to generate
electricity is the result of an event of force majeure or when the grantee is in the process
of repairing the solar power <del>facility</del> <ins>facilities,</ins> provided that, in either case, the solar
power <del>facility resumes</del> <ins>facilities resume</ins> generating electricity in commercial quantities
within 180 days;
(2) The date the landowner receives written notice of intent to decommission the solar
power <del>facility</del> <ins>facilities</ins> from the grantee; or
(3) The date the solar power facility agreement is terminated.
(e) The requirements of this Code section applicable to a solar power facility agreement
may be waived or modified through a written, notarized agreement between the grantee and
landowner, <ins>which may be the solar power facility agreement if such waiver or modification
is clearly denoted; provided, however, that no such agreement shall waive or modify the
grantee's obligation to remove the grantee's solar power facilities from the landowner's
</ins>
<ins>property upon the termination of the solar power facility agreement.</ins> Any such agreement
shall be recorded with the clerk of the superior court of the county where the solar power
<del>facility is</del> <ins>facilities are</ins> located.
46-3-69.1.
(a) A solar power facility agreement shall provide that:
(1) The grantee shall obtain and deliver to the landowner and record with the clerk of the
superior court of the county where the solar power <del>facility is</del> <ins>facilities are</ins> located
evidence of financial assurance that conforms to the requirements of this subsection to
secure the performance of the grantee's obligation to remove the grantee's solar power
facilities located on the landowner's property <ins>and, if applicable, to restore the property
to the conditions described in</ins> <del>pursuant to</del> Code Section 46-3-69;
(2) The amount of the financial assurance shall be:
(A) At least equal to the estimated cost of removing the solar power facilities from the
landowner's property and, <ins>if applicable,</ins> restoring the property to the conditions
described in Code Section 46-3-69:
(i) Minus the salvage value of the solar power facilities; and
(ii) Plus any portion of the value of the solar power facilities pledged to secure
outstanding debt; and
(B) Determined by an independent, third-party professional engineer licensed in this
state;
(3) The grantee shall deliver to the landowner an updated estimate, prepared by an
independent, third-party professional engineer licensed in this state, of the <del>removal costs
and the salvage value of the solar power facilities</del> <ins>required amount of financial assurance
under subparagraph (A) of paragraph (2) of this subsection:
</ins> (A) No later than 20 years after the commercial operations date of the solar power
facilities; and
(B) At least once every five years after the commercial operations date of the solar
power facilities for the remainder of the term of the agreement;
(4) The grantee shall be responsible for ensuring that the amount of the financial
assurance remains sufficient to cover the amount required by paragraph (2) of this
subsection, consistent with the <ins>updated</ins> estimates required by paragraph (3) of this
subsection;
(5) The grantee shall be responsible for the costs of obtaining financial assurance and
costs of determining the estimated removal <ins>and, if applicable, restoration</ins> costs and <ins>the
</ins> salvage value <ins>described in paragraph (2) of this subsection and the costs of updating such
estimates pursuant to paragraph (3) of this subsection;</ins> and
(6) The grantee shall deliver the financial assurance not later than the commercial
operations date of the solar power facilities.
(b) No county or municipal corporation shall impose on a grantee who has entered into a
solar power facility agreement that conforms to the requirements of this Code section
financial assurance requirements relating to the removal or decommissioning of solar
power facilities.
(c) No grantee shall cancel the financial assurance delivered to the landowner pursuant to
this Code section before the date the grantee has completed the grantee's obligation to
remove the grantee's solar power facilities located on the landowner's property in the
manner provided by this part, unless the grantee provides the landowner with replacement
financial assurance at the time of or before such cancellation. In the event of a transfer of
ownership of the grantee's solar power facilities, the financial assurance provided by the
grantee shall remain in place until the date on which evidence of substitute financial
assurance meeting the requirements of this part is <del>provided</del> <ins>delivered</ins> to the landowner.
<ins>46-3-69.2.
(a)(1) Prior to the commercial operations date of any solar power facilities that are
installed or otherwise constructed on the property of a landowner pursuant to a solar
power facility agreement, the grantee shall provide to the division evidence that it has
delivered to the landowner the financial assurance required under the solar power facility
agreement and that meets the requirements of Code Section 46-3-69.1.
(2) The division shall have the authority to issue a cease and desist order to any grantee
that:
(A) Fails to provide evidence to the division, as required under paragraph (1) of this
subsection, that it has delivered to the landowner the financial assurance required under
the solar power facility agreement before the commercial operations date of the solar
power facilities; or
(B) Otherwise violates the provisions of Code Section 46-3-69.1.
(3) If a cease and desist order is issued to a grantee by the division pursuant to paragraph
(2) of this subsection, the grantee shall, upon being served with such cease and desist
order, immediately cease operations of all solar power facilities located on the property
of the landowner and shall not resume such operations until such cease and desist order
is rescinded by the division upon its determination that the reason or reasons for the
issuance of the cease and desist order have been cured by the grantee or upon such cease
and desist order being overturned by a court of competent jurisdiction.
(4) The issuance of a cease and desist order by the division pursuant to paragraph (2) of
this subsection shall constitute a final order subject to judicial review under Chapter 13
of Title 50, the 'Georgia Administrative Procedure Act.'
(b)(1) Any grantee that operates any solar power facilities in violation of paragraph (3)
of subsection (a) of this Code section shall be subject to a civil penalty of $1,000.00 per
day until the earlier of:
</ins>
<ins>(A) The date on which the division rescinds the cease and desist order issued to the
grantee;
(B) The date on which the issuance of the cease and desist order is overturned by a
court of competent jurisdiction; or
(C) The date the grantee ceases operations of all solar power facilities located on the
property of the landowner.
(2) The civil penalty provided for in paragraph (1) of this subsection may be assessed by
the division against a grantee through an administrative consent order or after notice and
hearing as provided by Chapter 13 of Title 50, the 'Georgia Administrative Procedure
Act.' Any such civil penalty that is finally assessed against a grantee shall be recoverable
by civil action brought in the name of the division in the superior court of the county
where the solar power facilities are located."
</ins> SECTION 2.
This Act shall become effective upon its approval by the Governor or upon its becoming law
without such approval.
SECTION 3.
All laws and parts of laws in conflict with this Act are repealed.