California is currently considering regulations that could streamline future disposal of solar panels within the state and also provide a roadmap for other states and the Environmental Protection Agency (EPA) to follow.

Currently, many solar panels are deemed hazardous waste when disposed of due to the presence of heavy metals and other constituents of concern.  Hazardous waste is subject to a variety of stringent disposal requirements under the federal Resource Conservation and Recovery Act (RCRA) and analogous state laws.

Earlier this year, California formally proposed rulemaking that would designate solar panels as "universal waste." Universal waste is a subset of hazardous waste but is generally subject to more streamlined waste management standards because such waste is commonly generated and determined to pose a lower risk to people and the environment.  The California Department of Toxic Substances Control (DTSC) preliminarily concluded that solar panels meet this standard. First, solar panels are increasingly ubiquitous in California, and found not just at large commercial and industrial businesses and utilities but also at residential buildings. Further, solar panel design makes them relatively low-risk hazardous waste -- they are “constructed to withstand environmental conditions to last up to 30 years, which requires durability and structural integrity.” See DTSC, Initial Statement of Reasons, Photovoltaic (PV) Modules – Universal Waste Management, Ref. No R-2017-04 (Jan. 8, 2019), available at https://dtsc.ca.gov/wp-content/uploads/sites/31/2019/04/ISOR-Final-PVM.pdf.

Although this proposed rulemaking primarily affects solar panels in California in the short term, it may influence other states and EPA in the long term.  First, other states may use the California rule as a roadmap for their own regulations.  Second, EPA considers state-level universal waste rulemakings when deciding if additional materials should be added to its federally applicable universal waste standards.  For instance, in March 2018 EPA followed the lead of several states (including California) and proposed to designate aerosol cans as universal waste under RCRA.  See 83 Fed. Reg. 11,654 (March 16, 2018).  EPA currently anticipates publishing a final rule addressing aerosol cans in November 2019. Third, the size of the California market typically generates momentum for such standard setting.

***

Comments were due on the DTSC proposed rule on June 10, 2019.  Additional information can be found on DTSC’s website https://dtsc.ca.gov/regs/pv-modules-universal-waste-management/ and https://dtsc.ca.gov/photovoltaic-modules-pv-modules-universal-waste-management-regulations/, and the proposed regulation can be found here: https://dtsc.ca.gov/wp-content/uploads/sites/31/2019/04/2019-0107-Proposed-Reg-Text_PV-Modules.pdf. 

If you have any questions, please contact Chris Carr ([email protected] or 415.291.6208), Megan Berge ([email protected] or 202.639.1308), or Martha Thomsen ([email protected] or 202.639.7863).*

*Scott Novak, a Baker Botts Law Clerk, assisted in the preparation of this article.

ABOUT BAKER BOTTS L.L.P.
Baker Botts is an international law firm whose lawyers practice throughout a network of offices around the globe. Based on our experience and knowledge of our clients' industries, we are recognized as a leading firm in the energy, technology and life sciences sectors. Since 1840, we have provided creative and effective legal solutions for our clients while demonstrating an unrelenting commitment to excellence. For more information, please visit bakerbotts.com.