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COMMENTARY: Spotsylvania's solar decommissioning will be a nightmare
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COMMENTARY: Spotsylvania's solar decommissioning will be a nightmare

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In March, 2019, the Spotsylvania County Board of Supervisors granted sPower, a Utah-based developer of industrial solar facilities, a Special Use Permit (SUP) to construct a 6,300-acre solar factory on land lying just outside Fredericksburg. The vote was 5-2, with only Supervisors David Ross and Paul Trampe voting against it.

This massive facility—dubbed the “Spotsylvania Solar Energy Center”—is one of the largest in the U.S., and by far the largest such facility east of the Mississippi River. When it is finished, it will contain over 1.5 million solar panels, each weighing about 40 pounds, and all of them containing toxic chemicals, such as cadmium telluride, copper sellenide, and lead.

The action of the board was puzzling for many reasons. Just over one month before, the Spotsylvania County Planning Commission had voted against the application by a 5-2 margin, yet the Board of Supervisors overturned that finding by a 5-2 vote.

Furthermore, the Board of Supervisors took no expert testimony or held evidentiary hearings to justify such an enormous facility. Nor did it take any testimony addressing the issue of the removal of the solar panels once they have outlived their useful lives (called “decommissioning”), which for panels of this type is usually 15-20 years.

It should have.

The removal and disposition of these panels will be a monumental task, one that is even more complex and challenging than the original installation itself.

Virginia has a law governing the decommissioning of industrial solar facilities (as opposed to the more common and considerably smaller rooftop solar installations). The law states that “a locality” in which the solar facility is located “shall require” the developer of the facility to provide a “financial assurance” to guarantee that funds are available to properly decommission the project.

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So what did the Board of Supervisors require sPower to provide in the way of a financial assurance? After all, the decommissioning will require the removal of over 30,000 tons of toxic waste. Surely the board would take great pains to ensure that this part of the project would be properly paid for, and that funds would be secured to finance the decommissioning in case of default by the developer.

This is where the board’s arrangement with sPower becomes very curious.

Instead of requiring financial assurance, as mandated by Virginia law, the Board of Supervisors agreed to a scheme where no assurance whatsoever would be required for the first five years of the project, and no assurance covering the full cost of decommissioning would be required until the 30th year of the project, even though the useful life of the solar panels is only 15-20 years.

But the real problem with the decommissioning scheme is even worse than that. The board was somehow persuaded to agree that the cost of decommissioning would be reduced—“offset” is the term used—by the salvage value of the solar panels installed on the property.

What was that again? Spotsylvania County does not own the panels or have any other property rights in the solar equipment installed for the project. Once the used equipment is sold, the county receives no proceeds. The county could care less what the salvage value of the property actually turns out to be.

In other words, the salvage value of the equipment is irrelevant to the cost of decommissioning. But in tying the two together, the county not only assumes salvage value risk, but also assumes this risk for solar property which it does not even own.

It would be like selling your house to a buyer, and letting the buyer agree to pay you for the house at the end of 30 years, with the sales price reduced by the salvage value of the furniture placed by the buyer inside the house.

In short, what Spotsylvania is facing is a potential Superfund cleanup site a few decades from now, with no cash money in escrow to finance the operation. sPower has not provided any financial assurance, as required by law, and the county is left with a bare promise that some entity owning the facility 30 years from now will comply with the decommissioning obligation, which raises the clear specter of protracted negotiation and litigation.

What was the Spotsylvania Board of Supervisors thinking?

Collister Johnson is a senior advisor for the the Suburban Virginia Republican Coalition

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