See my colleague Wayne Rosenbaum‘s recent post on the question of how failed solar panels could be treated under federal and California waste laws:
Recently the New York Times published an article highlighting the high rate of solar panel failures well before their expected life times. While the article focused on the question of product liability, it raises another question. How does the law, particularly waste laws, define a solar panel that is no longer fit for its original intended use or purpose?
Under current federal and California law, the manufacturer of a non-functioning solar panel does not have an obligation to take back panels at the end of life as it does under the EU WEEE Directive. However, it is likely that this will change as the US PV market matures and more arrays approach end of life or fail. Panel manufactures are encouraged to monitor this issue and potentially to participate in contingency planning or rulemaking.
Regarding the disposal of defective panels, once an entity takes title to the panel it becomes the owner of that panel. This includes lenders who take title through foreclosure. As such, the owner becomes responsible for the panel’s proper handling and disposal. This requirement raises the question: Once the owner takes possession what will it do with the panel or its components at the end of their useful life?
Once the panels are in the owner’s possession and are no longer functioning or are being decommissioned, there are three possible actions that could be taken.
If the panel is being repaired or is being resold for use somewhere else, it is still suitable for its original "use or purpose" and therefore is not a waste. If it is not a waste, it cannot be a hazardous waste and therefore no special handling is required. Please note, however, that any components that are replaced would either be a waste or a recycled material subject to the recycling or disposal rules described below.
To the extent that the panels or their components are recycled they are exempt from state and federal waste requirements provided that the owner complies with state and federal recycling requirements. These are as follows:
- The recycled material is being sold through an arm’s-length transaction or is reused in the repair or manufacture of other solar panels. As an example, the aluminum components could be sold to an aluminum recycler. The solar cells could be sold to a secondary user who uses them as solar cells even though they have a reduced power output. Usable components from one panel are cannibalized to repair or build another panel.
- The recycled material is not a listed hazardous waste. This is not a problem currently as solar arrays are not listed wastes. However, this could change in the future.
- The recycled material is not being burned for energy recovery. Again this should not be a problem.
- The owner does not speculatively accumulate the recycled material. Inventory of recycled materials must be turned over within 180 days of receipt.
Any remaining materials that cannot be recycled would be considered to be solid wastes and possibly hazardous wastes. As solar cells are not listed hazardous wastes at this time, the owner would need to conduct TCLP and WET testing on this waste stream to determine if the materials are hazardous wastes. If the material passes the WET and TCLP tests, it can then be disposed of as a solid waste. Please note, however, that local agencies may have further regulations concerning whether these materials will be accepted at local sanitary landfills or whether these materials then need to be disposed of at some other location. If the wastes fail the WET or TCLP tests, they must then be manifested and sent to a licensed hazardous waste treatment, storage and disposal facility via a licensed transporter.