# Title 69 — Public Service Commission

## Article 69-09 — Public Utility Division

## Chapter 69-09-09 — Wind Facility Decommissioning

### § 69-09-09-01. Definitions.

1. "Capacity factor" means the ratio of the actual output generated by a facility for a period of
time, to the output that could be produced at the nameplate generating capacity of that facility.
2. "Certificate of operation" means an affidavit executed by the owner certifying to the
commission a facility's:
a. Nameplate generating capacity;
b. Annual capacity factor;
c. Annual megawatt hour output; and
d. Monthly megawatt hour output.
3. "Commercial wind energy conversion facility" means a wind energy conversion facility with
one or more wind turbines that has a total nameplate generating capacity equal to or greater
than five hundred kilowatts.
4. "Commission" means the public service commission.
5. "Construction" means any clearing of land, excavation, or other action that would affect the
environment of the site of a facility, but does not include activities incident to preliminary
engineering or environmental studies.
6. "Decommissioning plan" means a plan filed with the commission that includes:
a. The anticipated life of the facility;
b. A decommissioning cost estimate, excluding salvage offsets that reduce
decommissioning cost;
c. A description of the method used for determining the decommissioning cost estimate;
d. The anticipated manner in which the project will be decommissioned;
e. A description of any expected effects on present and future natural resource
development; and
f. A detailed plan of financial assurance sufficient to ensure decommissioning.

7. "Existing facility" means a facility for which a certificate of site compatibility was issued prior to
July 1, 2017, or, if no certificate of site compatibility was issued, a facility that commenced
operation prior to July 1, 2020.
8. "Facility" means a commercial wind energy conversion facility, including wind turbines, towers,
bases, blades, transformers, cables, lines, substations, concrete, fences, facility access roads,
and all areas disturbed by the construction, operation, maintenance, or decommissioning
activities.
9. "Owner" means a person who holds a certificate of site compatibility pursuant to North Dakota
Century Code chapter 49-22, or if no certificate was issued, a person who owns a facility or
part of a facility.
History: Effective October 1, 2008; amended effective July 1, 2017; July 1, 2020.
General Authority: NDCC 28-32-02, 49-02-27
Law Implemented: NDCC 49-02-27
### § 69-09-09-02. Decommissioning responsibility.

The owner is responsible for decommissioning the facility and for all costs associated with
decommissioning.
History: Effective October 1, 2008; amended effective July 1, 2017.
General Authority: NDCC 28-32-02, 49-02-27
Law Implemented: NDCC 49-02-27
### § 69-09-09-03. Abandonment and useful life - Certificate of operation.

1. After construction of a facility is complete, the owner shall annually file a certificate of
operation with the commission for that facility by April first of each year.
2. If no energy is generated by one or more wind turbines for the time period specified in the
certificate of operation, a written explanation for the nongenerating wind turbines must
accompany the certificate of operation.
3. A facility is presumed to be at the end of its useful life if its annual capacity factor is less than
ten percent for two consecutive years.
4. A facility is presumed to be abandoned if, after commencement of construction and prior to
completion, a period of twenty-four consecutive months has passed with no significant
construction.
5. A presumption under this section may be rebutted by filing a plan for commission approval
outlining the steps and schedule for continuing construction or operation of the facility or wind
turbine.
History: Effective October 1, 2008; amended effective July 1, 2017.
General Authority: NDCC 28-32-02, 49-02-27
Law Implemented: NDCC 49-02-27
### § 69-09-09-04. Decommissioning period.

The owner shall begin decommissioning within twelve months after abandonment or the end of its
useful life. Decommissioning must be completed within twenty-four months after abandonment or the
end of its useful life unless the commission approves a plan specifying the steps and schedules to
return the facility to operation.
History: Effective October 1, 2008; amended effective July 1, 2017.

General Authority: NDCC 28-32-02, 49-02-27
Law Implemented: NDCC 49-02-27
### § 69-09-09-05. Decommissioning requirements.

1. Decommissioning the facility includes:
a. Dismantling and removal of all towers, turbine generators, transformers, fencing,
overhead cables, inverters, transformers, substations and other equipment;
b. Removal of underground cables to a depth of twenty-four inches [60.96 centimeters];
c. Removal of foundations, buildings, and ancillary equipment to a depth of:
(1) Three feet [91.44 centimeters] for facilities constructed before July 1, 2017; and
(2) Four feet [121.92 centimeters] for facilities constructed on or after July 1, 2017;
d. Site restoration and reclamation to the approximate original topography that existed prior
to construction of the facility with topsoil respread over the disturbed areas at a depth
similar to that in existence prior to the disturbance; and
e. Grading and restoring topsoil of areas disturbed by the facility, and reseeding according
to natural resource conservation service recommendations, unless the commission
approves an owner request signed by the applicable landowner, identifying the surface
features the landowner prefers to remain in place, and the reason the landowner prefers
those features to remain.
2. The commission may waive a decommissioning requirement upon receipt of a request signed
by the applicable landowner and finding good cause that the requirement be waived.
History: Effective October 1, 2008; amended effective July 1, 2017; July 1, 2020.
General Authority: NDCC 28-32-02, 49-02-27
Law Implemented: NDCC 49-02-27
### § 69-09-09-06. Decommissioning plan.

1. Prior to the commencement of operation of a facility, the owner must have an approved
decommissioning plan.
2. The commission shall make a determination on the decommissioning plan no later than sixty
days after the decommissioning plan is deemed complete by the commission.
3. A decommissioning cost estimate for a facility:
a. Must be made by a professional engineer licensed by the state of North Dakota and at
the owner's expense;
b. May include a decommissioning cost estimate, including salvage value, in addition to the
decommissioning cost estimate, excluding salvage value;
c. Must be updated and filed with the commission ten years after initial approval of the
decommissioning plan and then continue to be updated and filed with the commission
every five years until decommissioning is complete.
4. The commission may at any time require the owner to file an updated decommissioning plan.
History: Effective October 1, 2008; amended effective October 1, 2010; July 1, 2017.
General Authority: NDCC 28-32-02, 49-02-27

Law Implemented: NDCC 49-02-27
### § 69-09-09-07. Existing facilities.

The owner of an existing facility shall provide financial assurance upon ten years of operation
sufficient to complete decommissioning.
History: Effective October 1, 2008; amended effective July 1, 2017; July 1, 2020.
General Authority: NDCC 28-32-02, 49-02-27
Law Implemented: NDCC 49-02-27
### § 69-09-09-08. Financial assurance.

1. Prior to commencement of construction of a facility, the owner shall provide financial
assurance equal to five percent of the estimated cost of construction of the facility that may be
used to decommission the facility in the event it is abandoned prior to operation. Within sixty
days of receipt of written notice from the owner that the facility is commercially operational and
receipt of financial assurance pursuant to subsection 2, the commission shall return or release
said financial assurance provided to the commission.
2. Prior to commencement of operation of a facility, the owner shall provide financial assurance
that is acceptable to the commission and sufficient to ensure complete decommissioning.
3. Financial assurance may be in the form of a performance bond either as, or combination of,
cash escrow held by a federal insured financial institution, a surety bond, irrevocable letter of
credit, guarantee, parent guarantee, or another form of financial assurance that is acceptable
to the commission to cover the anticipated costs of decommissioning.
4. The commission may allow the owner to provide financial assurance through an incremental
bond schedule. To be given consideration, an incremental bond schedule must include an
initial bond increment prior to commencement of operation.
5. The commission may accept a guarantee or parent guarantee if:
a. The owner has been in continuous operation as a business entity for five years preceding
the application. The commission may accept a guarantee with less than five years of
continuous operation if guaranteed with a parent guarantee and the parent company has
been in operation for at least five years preceding the application; and
b. The owner or parent guarantor has or is one of the following:
(1) A current rating in the "A" category or higher for its most recent bond issuance or
issuer rating as issued by Moody's Investors Service, Standard and Poor's
Corporation, or an equivalent rating by any other nationally recognized statistical
rating organization, as defined and approved by the United States securities and
exchange commission, that is acceptable to the commission. If an organization has
different ratings among various rating organizations, the commission shall accept
the higher of the ratings;
(2) A tangible net worth of at least ten million dollars, a ratio of total liabilities to net
worth of 2.5 or less, and a ratio of current assets to current liability of 1.2 or greater;
or
(3) An electric public utility as defined by subsection 2 of North Dakota Century Code
section 49-03-01.5.

6. The total amount of an outstanding guarantee for decommissioning may not exceed twenty-
five percent of the owner's tangible net worth in the United States.
7. The combined total amount of an outstanding guarantee and parent guarantee for
decommissioning my not exceed twenty-five percent of the owner's and parent guarantor's
combined tangible net worth in the United States.
8. If any financial assurance is modified, canceled, suspended, or revoked, the owner shall
immediately notify the commission and provide financial assurance as soon as practicable
sufficient to ensure complete decommissioning.
9. The commission may require additional financial assurance upon a finding that the current
financial assurance for a facility is not sufficient to ensure complete decommissioning.
History: Effective October 1, 2008; amended effective July 1, 2017; July 1, 2020.
General Authority: NDCC 28-32-02, 49-02-27
Law Implemented: NDCC 49-02-27
### § 69-09-09-09. Failure to decommission.

If the owner does not complete decommissioning, the commission may take action to complete
decommissioning, including action to require forfeiture of a bond. The entry into a participating
landowner agreement shall constitute agreement and consent of the parties to the agreement, their
respective heirs, successors, and assigns, that the commission may take such action as may be
necessary to decommission a facility, including the exercise by the commission, commission staff, and
their contractors of the right of ingress and egress for the purpose of decommissioning the facility.
History: Effective October 1, 2008; amended effective July 1, 2017.
General Authority: NDCC 28-32-02, 49-02-27
Law Implemented: NDCC 49-02-27
### § 69-09-09-10. Wind energy conversion facility - Waiver.

The commission may grant a waiver of any requirement described in sections 69-09-09-03,
69-09-09-06, or 69-09-09-08 for a commercial wind energy conversion facility with a nameplate
generating capacity of no more than five megawatts of electricity upon a motion demonstrating good
cause for the waiver.
History: Effective July 1, 2018.
General Authority: NDCC 28-32-02, 49-02-27
Law Implemented: NDCC 49-02-27
