Calif.'s Complicated Transition On Solar Panel Disposal
By Laurie Berger (September 2, 2021) (Originally published by Law 360 as Expert Analysis)
Solar energy is a high priority in California. California generates more solar energy than any other state, and California is the first state to require solar panels on most new homes.
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.
One method to determine if a waste is hazardous is by conducting analytical testing of the waste using the Toxicity Characteristic Leaching Procedure, or TCLP test. PV modules may exceed the thresholds for heavy metals for toxicity and therefore may be classified as a hazardous waste once they are no longer in use. If a PV waste is determined to be a hazardous waste, the generator of that waste must comply with strict treatment, storage and disposal requirements.
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.
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.
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:
- When replaced or removed at the end of service life;
- During manufacturing due to defects or breakage; and
- Damage or breakage during installation or storage.
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?
- Storage and Accumulation: Under the new requirements, someone who handles waste PV modules may now accumulate them for up to one year (generally hazardous waste can only be accumulated for 90 days).
- Notification: The new regulations contain new notification requirements and the DTSC has developed notifications forms.
- Initial Notification: The initial notification requirements apply to any universal waste handler who may accept and accumulate — but not treat — any quantity of PV module waste. The handler must provide written notice to the DTSC no later than 30 calendar days prior to accepting or accumulating waste. The regulations specify what must be contained in this notice.
- Treatment Notification: There is also a notification requirement for handlers who treat PV module waste. Treatment includes removal activities, dismantling activities and processing activities, such as intentionally breaking module glass. Treatment that involves the use of chemicals or heat is not allowed under the regulations and would require a permit. Notification must be submitted to the DTSC no later than 30 calendar days prior to treatment.
- Disposal Notification: A universal waste handler who makes a determination to dispose of PV modules must submit to the DTSC written notification that includes information including the name, address and ID of the disposal facility 15 days prior to every disposal.
- Annual Reporting: The new regulations require annual reporting for handlers that accept more than 220 pounds from an offsite source, handlers that generate more than 11,000 pounds of PV module waste and handlers that treat PV modules.
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.
- Training: Initial and annual training is required for handlers of PV module waste. The training covers the types of hazards associated with universal waste, disposition of waste, response to releases, labeling, handling and record-keeping.
- Labeling, Record-keeping and Manifests: The regulations provide for less stringent labeling and record-keeping and allow for PV modules to be transported without a hazardous waste manifest. Each PV module, container or pallet of waste must be labeled "Universal Waste-PV module(s)."
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.
- Transporting and Containment: If transporting more than 220 pounds of modules, the modules must be contained in a manner that prevents breakage. This may include wrapping with stretch film.
- Response to Releases: PV module waste must be handled the same way as other universal wastes. The handler must immediately contain releases, determine whether any material resulting from the release is a hazardous waste and manage it in accordance with applicable requirements.
- Treatment Facility Closure: Handlers that perform processing treatment by intentionally breaking the PV module glass are required to satisfy financial responsibility requirements and prepare a closure plan and cost estimate for closure. Upon facility closure, the handler must notify the DTSC and undergo a closure inspection.
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:
- Recycling may increase. One of the purposes of the new regulations is to promote recycling and reuse of modules. The DTSC's Economic and Fiscal Impact Statement Form 399 Attachment estimates that at least 15% of PV modules will be recycled as a result of the regulations.
- Creation/expansion of treatment facilities. The regulations are expected to the increase the rate of generation of hazardous waste, and this in turn is expected to increase the number of businesses needed to handle hazardous waste PV modules.
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.
- Contracts may need to include provisions for proper disposal. It may be necessary to reevaluate contractual provisions in power purchase agreements, warranties, purchase and sale agreements and other contracts to ensure compliance with the regulations.
- California law may be a model for other states. Since the California law is the first of its kind, other states are expected to be watching carefully and the new California rule may be used as a model.
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.
- Noncompliance may be very expensive. Over the last decade in California, the attorney general and district attorneys' offices have brought actions against retailers and the cable industry for improper disposal of universal waste. It has not been uncommon for the defendants in these actions to pay civil penalties of more than $10 million.
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.
Laurie Berger is special counsel at Silicon Valley Law Group.
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.
 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.
 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.