(a) Facility Decommissioning. The applicant shall provide a facility decommissioning plan. - (i) The facility decommissioning plan shall include provisions regarding the removal and proper disposal of all wind turbines, towers, substations, buildings, and cabling, electrical components, foundations to a depth of forty-eight (48) inches, and any other associated or ancillary equipment or structures within the facility boundary above and below ground.
- (ii) The facility may request that a building be left on site if approval is obtained from the surface landowner and upon written notification to the Administrator.
- (iii) Facility or individual wind turbine decommissioning shall begin:
- (A) Within twelve (12) months after the end of the useful life of the facility or individual wind turbine, or
- (B) When no electricity is generated for a continuous period of twelve (12) months of the facility or individual wind turbine.
- (C) The Council may extend the time period of Section (8)(a)(iii)(B) if the facility demonstrates good cause prior to the end of the continuous period of (12) months of the facility or wind energy generating towers not generating electricity.
- (iv) The facility decommissioning plan shall be updated and submitted to the Administrator every five (5) years.
(b) Interim Reclamation. Interim Reclamation shall comply with the applicable permitting requirements of the Department of Environmental Quality, Water Quality Division storm water program.
(c) Final Reclamation. The applicant shall provide a final reclamation plan which shall include: - (i) A detailed description of site conditions prior to construction, including topography, vegetative cover (including plant species and plant community structure), climate, and land uses.
- (ii) Re-grading. All tower foundations, roads, and all other surface disturbances within the facility boundary must be re-graded to the natural contours of the area. Backfilling, grading and contouring of affected land shall be accomplished by one or more of the following as detailed in the approved reclamation plan:
- (A) Re-establishment of the contour of the land in a manner consistent with the proposed future use of the land.
- (B) Contouring affected land to blend in with the topography of the surrounding terrain unless so doing would create an erosion problem or a hazard.
- (C) The facility may leave a road un-reclaimed if approval is obtained from both the surface landowner and the Administrator.
- (iii) Re-vegetation
- (A) After backfilling, grading and contouring, and the replacement of topsoil, re-vegetation shall be commenced in such a manner so as to most efficiently accommodate the retention of moisture and control erosion on all affected lands to be re-vegetated.
- (B) Re-vegetation documentation shall include seedbed preparation, seed mixture, and post seeding maintenance of all disturbed areas.
- (C) If applicable, documentation of any mulching and/or use of fertilizers.
- (D) Reclamation shall restore the land to a condition and native or adaptive perennial vegetative cover equal to or better than the original condition.
- (E) Re-vegetation of all affected lands shall be accomplished in a manner consistent with the approved reclamation plan and the proposed future use of the land.
- (F) Seeding of affected land shall be conducted during the first normal period for favorable planting conditions after final preparation unless an alternative plan is approved. The species of vegetation to be used in re-vegetation efforts shall be described in the reclamation plan indicating the composition of seed mixtures and the amount of seed to be distributed on the area on a per acre basis.
- (G) The operator must control and minimize the introduction of noxious weeds into the re-vegetated areas until final reclamation is achieved.
- (iv) The final reclamation plan shall be updated and submitted to the Administrator every five years.
(d) Financial Assurance: The applicant shall provide financial assurances for a wind energy facility, sufficient to assure complete decommissioning and site reclamation of the facility in accordance with the provisions of these rules. Wind energy facilities subject to regulation by the Public Service Commission shall be exempt from these financial assurance provisions and from the Cost Estimation for Decommissioning and Site Reclamation provisions of Section 9(e) and (h) of these rules. - (i) All financial assurances shall be in place prior to commencement of construction of any wind energy facility, and shall be adjusted up or down every five years from the date of permit issuance by the Council based on the results of paragraph (e) of this section.
- (ii) Additional financial assurances to cover risks not anticipated at the time of the permit may be required at any time by the Director, as reasonable and necessary, provided the Director first gives thirty (30) days written notice stating the reason for and the amount of the additional financial assurance.
- (iii) Financial assurance in the form of domestic securities may be accepted in any of the following forms at the discretion of the Director with consideration of credit worthiness, financial strength, credit history, credit rating and debt.
- (A) Surety bond with a corporate surety registered in Wyoming.
- (B) Certificate of deposit in the name of the "Department of Environmental Quality" with a state or federally insured financial institution in Wyoming. The permittee shall be entitled to all interest payments.
- (C) Other forms of assurance such as corporate guarantee, letter of credit, insurance policy, or other forms as may be acceptable to the Director.
- (iv) If the Permittee fails to decommission and reclaim as described in its permit, the Director may determine that the financial assurance be forfeited to the Division to arrange for the decommissioning and reclamation to be conducted by a third-party. In order for the Director to determine that the financial assurance be forfeited, the Director shall:
- (A) Determine that decommissioning or reclamation has not started or it has fallen behind the approved schedule for more than six (6) months.
- (B) Notify the Permittee in writing of the failure to perform reclamation in accordance with its approved reclamation plan and demand that justification be provided to the Division within 30 days.
- (I) If no justification is made by the Permittee within the time provided, or if the Director rejects the justification, the Director shall provide the Permittee written notice that the Division intends to pursue forfeiture of the financial assurance.
- (II) The Permittee has 30 days from the date of receiving the notice of financial assurance forfeiture to request a hearing with the Council contesting the forfeiture of the financial assurance.
- (III) If no hearing is requested, the Council will address the revocation of the permit and forfeiture of the financial assurance at the next meeting of the Council. If a hearing is requested, the Council shall conduct a hearing in accordance with the Wyoming Administrative Procedures Act. The Permittee shall bear the expense of scheduling and holding the hearing.
(e) Cost Estimation for Decommissioning and Site Reclamation of the facility: - (i) Estimates of cost for decommissioning and site reclamation shall be made by a licensed professional engineer provided by the applicant and subject to review and approval by the Director.
- (ii) Total decommissioning costs shall be estimated without regard to salvage value of the equipment.
- (iii) Decommissioning and site reclamation estimates shall be submitted to the Division in the application and every five years after the date of permit issuance until the completion of final reclamation.
- (iv) The licensed professional engineer estimate of decommissioning and reclamation costs shall include the following:
- (A) A general discussion of assumptions, including equipment, timeframes, backup calculations, procedures, methods, and any other considerations used in developing the cost estimate.
- (B) A detailed description of the decommissioning activities to be performed.
- (C) A detailed description of the reclamation activities to be performed.
- (v) The facility may request release of the financial assurance mechanism when the facility has achieved final reclamation. Final reclamation means that all surface disturbances have been re-graded and re-vegetated with a uniform perennial vegetative cover with a density of 90% of the native or adaptive background vegetative cover. Noxious weeds shall not be included in percent cover in determining reclamation success.
(f) The Council may give a case-by-case variance to requirements of this Section after considering evidence by the applicant or landowner.
(g) Notice to record owners of mineral rights. Before submitting the application, the applicant shall provide notice to record owners of mineral rights located on or under the land where the proposed facility will be constructed. - (i) The notice shall consist of a statement of the applicant's intention to construct the project, features of the project, a legal description of the boundaries of the project, locations where the application may be examined, and persons to contact for additional information.
- (ii) The notice shall be mailed by first class mail to all record owners of mineral rights whose identity and current addresses are readily obtainable from publicly available documents.
- (iii) The notice shall be published twice in a newspaper of general circulation in the county or counties where the project is to be located.
- (iv) The notice and details of steps taken to notify the record owners of mineral rights shall be entered into the record either within the application or as separate exhibit filed with the hearing examiner and parties.
(h) The application shall contain information demonstrating the applicant's financial capability to construct, maintain, operate, decommission, and reclaim the facility. Such documentation, if requested, shall be held confidential to the extent authorized by Wyoming law and shall include: - (i) Commitment letters from the principal investors of the project, which may be conditioned on issuance of required state and local permits; or
- (ii) For applicants whose securities are publicly traded and are required to publicly disclose financial statements, any one of the following:
- (A) General audited financial statements for the most recent year-end;
- (B) Most recent credit ration reports for the financing company as published.
- (C) Reports by chartered financial analysts as published.
- (iii) For applicants whose securities are not publically traded, financial statements of the majority financial contributors.
(i) Notice to affected landowners - (i) Applicant must provide a list of the names and mailing addresses of all affected landowners at the time the application is submitted.
- (ii) Upon receipt of an application subject to this section, the Division will provide notice to the affected landowners and request information and recommendations, which pertain to their respective lands and interests.
- (iii) All review comments from State agencies pursuant to W.S. 35-12-110(b) and (c) will be provided to the affected landowners by the Division.
- (iv) All comments by affected landowners received by the Division about the project and about the agency comments under (iii) above will be provided to the State agencies. The agencies will give the Division their replies to the comments from affected landowners.