New Maine Law Regarding Decommissioning for Solar Projects
Maine’s new solar decommissioning law takes effect October 18 and applies to projects that have not commenced construction by October 1, 2021. The law requires solar projects that occupy an area of three or more acres to have a DEP (or LUPC if LUPC is the permitting entity) approved decommissioning plan in place prior to start of construction (unless construction began prior to October 1, 2021, in which case the project is grandfathered). It also applies to the transfer in the legal ownership of a project that occurs after October 1, 2021, but a transfer of ownership does not include the sale of membership interests, stock etc. in the project entity.
For projects that have a Site Location of Development Act (SLODA) permit, the decommissioning plan is approved as part of that process. If a project did not require SLODA approval, however, then the project needs to file a separate application for approval of a decommissioning plan and provide financial assurance to cover decommissioning costs. Because this is a required DEP approval it must be applied for and the application must be deemed complete for processing by December 31, 2021, in order to satisfy the recently enacted Net Energy Billing grandfathering criteria .The DEP has developed an application form for this new decommissioning requirement and there will be an associated $500 application fee once the new law takes effect. The approval will require submission of financial assurance prior to the start of construction.
There is a slight change in the new requirements from what DEP has typically required as part of SLODA that is important to note. First, the new law requires an update of financial assurance only at Year 15 and then every 5 years thereafter. Most SLODA permits require an update every 5 years. Second, if the project is located on land classified as “farmland” at any time five years prior to start of construction, then removal of structures to a depth of 48 inches or bedrock, whichever occurs first, must occur (as compared to 24 inches for projects in areas not classified as farmland), and the area must be restored sufficient to support resumption of farming or agricultural activities. These are not requirements of most existing SLODA approvals, so the DEP is going to implement a streamlined process for updating existing SLODA approvals to reflect these changes.
If you have any questions regarding Maine's new solar decommissioning law, please contact Juliet Browne.