Preamble:

There are 85,000 wind towers and thousands of square miles of solar panels in the United States. They are being added at a rapid pace, and their environmental impact has been a source of increasing concern to many.  

Indeed, The U.S. Environmental Protection Agency has confirmed that PFAS compounds, including those related to the GenX process (e.g., FRD903 and FRD902), are used in solar panel production, raising the possibility that solar facilities could be sources of PFAS contamination. If PFAS should leak, they would be considered “forever chemicals” that once in the soil will be taken up by plants and potentially enter the local groundwater and food supply. 

Broken or defective wind turbines and solar panels, either caused by severe weather events or manufacturing defects, have been cited as likely risks to public health because of their potential to leak toxic chemicals into the environment. Increasing numbers of citizens are becoming alarmed.  

Since solar panels are designated as hazardous materials by the EPA, their proper operation and disposal is in the public interest. 

This model policy is designed to protect the ground underneath and around their operation from contamination by PFAS, metals, hydraulic fluids, and other chemicals or elements of concern that require mitigation if they are present beyond trace amounts.  

Act To Require the Testing for PFAS and Metal Contamination 

Section 1. Definitions. 

A.“PFAS” means perfluoroalkyl and polyfluoroalkyl substances.  

B. “Toxic metals” mean cadmium, lead, indium, and selenium. 

C. “Hydraulic fluid” means hydraulic and petroleum Lubricants. 

D. “Contaminants” mean PFAS, toxic metals, and hydraulic fluid. 

E. “Department” means the Department of Environmental Protection. 

F. “Operator” means the person operating a solar or wind energy development with the purpose of selling electricity. 

G. “Solar energy development” means a development that uses a solar energy system to convert solar energy to electrical energy for sale or use by a person other than the generator. 

H. “Solar energy development” includes generating facilities and associated facilities. 

I. “Wind energy development” includes generating facilities and associated facilities. 

Section 2. Testing requirements for solar and wind energy developments. 

1. Solar and wind energy developments shall test various locations determined by rule. 
2. the operator of a solar energy development shall conduct testing for PFAS and toxic metals contamination at the development site.  
3. If a solar energy development provides certification that their solar panels and onsite equipment do not contain PFAS or toxic metals they are exempt from testing for either PFAS or toxic metals that are certified as not present.  
4. Wind energy development shall test soil at the base and within 100 yards of the base for lubricants, hydraulic fluids, and fiberglass. 

Section 3. Scope. 

1. The department rules establish the requirements regarding the scope of testing to be conducted by the operator, including sampling and testing methods. The rules must require such testing to be conducted prior to development of a solar energy development or wind energy development, and every seven (7) years thereafter and when decommissioned; If the final seven (7) year testing is within four (4) years of decommissioning this testing requirement is waived until final decommissioning.  
2. Requirements for the operator to contract for a 3rd-party analysis of any PFAS and toxic metals contamination discovered through testing to assess extent of the contamination; 
3. Requirements regarding documentation of testing and submission by the operator of testing results, the 3rd-party analysis if applicable and other information to the department.

Section 4: Evaluation. 

The department shall publish provisions outlining the process by which the department will evaluate any PFAS, hydraulic fluid, or toxic metal contamination discovered through testing at the development site.  

Section 5: The rules. 

1. Shall require that, based on submitted testing and analysis and any other information available to the department, the department shall issue a written determination as to whether the contamination was reasonably caused by the construction, operation, or components of the development.  
2. The department shall provide a copy of the determination to the operator of the development and to the commission and post a copy of the determination on the department’s publicly accessible website.  
3. The costs of remediation of any contamination discovered through testing at the development site is the responsibility of the owner or operator of the development. 

Section 6: Effect of Determination. 

Mitigation is required to cure contamination.  

Section 7: Requirements and penalties. 

1. If the department determines in accordance with this section that contamination discovered at the site of a solar energy development or wind energy development was reasonably caused by the construction, operation or components of the development, the development no longer meets the eligibility requirements for any federal subsidies that require state approval, state subsidies, or renewable portfolio standards until mitigation has taken place. 
2. The mitigation shall be completed within six (6) months of department determination of responsibility. The operator is subject to $500 per day in fines retroactive to the determination of responsibility if they fail to mitigate within six (6) months. Extensions may be given by the department for reasonable issues with mitigation.  

Section 8. Severability  

Each section, paragraph, and portion of each paragraph of this Act is severable. If one or more sections, paragraphs, or portions of one or more paragraphs of this Act are held invalid on their face or as applied to particular facts, then the remaining portions and applications of the Act shall be given full effect to the greatest extent practicable.  

Section 9. Applicability and Effective Date

This Act applies to all solar energy developments and wind energy developments with contracts entered into, amended, or renewed after [DATE].