By Laurie Berger (September 2, 2021) (Originally published by Law 360 as Expert Analysis)
Last month, the California Energy Commission went even further and adopted the 2022 Energy Code, which will require solar panels on new commercial buildings and high-rise multifamily buildings. If approved in December, California will again be ahead of the rest of the country, and it will be the only state to require solar panels on virtually all new buildings.
This is welcome news. However, with the ever growing number of solar panels comes a new problem: What happens to the panels when they are no longer in use?
Solar panels, or photovoltaic modules, have a typical lifespan of about 30 years. In recent years, as PV modules reach the end of that lifespan, governmental regulatory agencies have begun to focus on how to manage these modules when they are taken out of service.
Although up to 90% of the components are recyclable, many PV modules contain heavy metals such as cadmium, copper, lead, antimony or selenium, and when they are taken out of service or broken, they may be classified as hazardous waste.
The determination of whether a PV module must be treated as a hazardous waste is a mixed question of law and science. Under the federal Resource Conservation and Recovery Act and the California Hazardous Waste Control Law, a waste may be a hazardous waste if it exhibits characteristics of ignitability, corrosivity, reactivity or toxicity.
Even if a PV module does not fail the TCLP test, it may still be regulated. California classifies certain less hazardous wastes as universal wastes which are common household items such as televisions, computers, electronic devices, batteries, fluorescent lamps, mercury thermostats, cathode ray tubes and glass, and aerosol cans.[1]
Universal wastes are a subset of hazardous waste, but they are subject to less onerous management requirements, but the same penalties. In 2015, California enacted a law authorizing the California Department of Toxic Substances Control, or DTSC, to enact regulations designating PV modules as universal waste.
Now, five years later, the DTSC has finalized the regulations, which went into effect on Jan. 1. This is the first law of its kind and will have a significant impact on how solar panels are managed.[2]
By being at the forefront, California's solar mandate makes it a model for other states. The Laurie Bergerhope is that more modules will be recycled and fewer will end up in landfills.
However, the regulatory framework is not uncomplicated, and failure to comply with hazardous waste requirements in California is expensive. Penalties can be up to $70,000 per day per violation.
In recent years in California, companies have paid fines in the tens of millions, so it is important to make sure your company is in compliance and has systems in place to keep up to date on the evolving requirements.
How Were PV Modules Managed Before the New Regulations?PV modules may become a waste in several ways:
Before the new regulations, PV modules were managed like any other waste. It was up to the person seeking to manage the waste, the generator, to determine whether the waste was hazardous before disposal. Testing modules prior to disposal is expensive and time- consuming and often impractical.
Given the uncertain and cumbersome process, in the past solar panels that were in fact hazardous were being improperly handled, and they were often illegally disposed of as nonhazardous solid waste at municipal landfills.
How Will PV Modules be Managed Under the New Regulations?Under the new regulations, the process for addressing PV modules will be streamlined. PV modules may be managed as universal waste without requiring a hazardous waste determination.
The goal is to create a framework for proper management that will be protective of human health and the environment. The regulations should ease the regulatory burden and encourage recycling.
How are PV modules defined in the new regulations?
The new regulations define PV modules to include not just rooftop modules or solar arrays, but the integrated components that cannot be separated from the panel without breaking the glass such as the metal framing and the glass itself.
The definition includes solar garden lights and solar-powered devices such as solar backpacks.
What are the significant provisions?
The reports are due Feb. 1 of each year and must cover activities for the previous year. The DTSC is in the process of developing a reporting form.
PV modules cannot be commingled with other universal waste. The record-keeping requirements for PV modules are the same as those for other universal waste. Logs of shipped and received waste must be retained for at least three years.
The new regulations will have a widespread effect on the solar industry in California as they will impact PV module manufacturers, installers, solar developers, service companies and organizations that install modules for their businesses or customers. The implications include the following:
Current electronic waste recycling companies may decide to expand their operations to include the capability to manage hazardous waste modules. After electronic wastes were added to California's universal waste program, more than two dozen e- waste treatment facilities were created, so it is likely that new facilities will be created in the near future.
It is also possible that the U.S. Environmental Protection Agency may decide to add PV modules to the federal definition. This will be important to track because the states have different approaches. The new regulation applies only to PV modules in California — in the event modules leave the state, the universal waste requirements will no longer apply and the modules must be managed in accordance with federal, state and local requirements.
Since out-of-service panels will now be regulated like other universal waste, companies managing disposal need to be very careful to ensure that they are in compliance with the new regulations and avoid potential penalties.
The intent of the new regulations is to promote recycling and reuse of PV modules, and therefore fewer modules will end up in landfills.
In the meantime, the coming months will be telling as handlers begin to navigate the new regulatory framework. The DTSC expects that by categorizing PV modules as universal waste there will be reduced regulatory burden and cost, and an incentive for generators to properly manage and dispose of PV modules.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] California's universal waste program is modeled after the federal Universal Waste Rule (40 CFR Part 273) and received final authorization from the EPA effective January 14, 2020.
[2] In 2017, the Solar Energy Industries Association, indicated that there are almost 29,000 businesses in California that may generate, mange or handle waste PV modules. DTSC Economic and Fiscal Impact Statement Form 399 Attachment citing SEIA/GTM Research U.S. Solar Market Insight.
[3] https://dtsc.ca.gov/photovoltaic-modules-pv-modules-universal-waste-management- regulations/.