SUP Conditions

Statement for the Record to Spotsylvania County Board of Supervisors and

Planning Commission to Request Actions to Avoid Harmful Impact of sPower Application

(All references in this statement to SUP or SUPs are applicable in total to all three applications:

SUP18-0001, 0002, 0003 Sustainable Property Holdings, LLC and/or sPower Development Co., LLC dba sPower)

Submitted on September 25, 2018 by Concerned Citizens of Fawn Lake and Spotsylvania County (CCFLSC)

Size of sPower Mega-Solar Power Plant Presents Extraordinary Risks

In general, the CCFLSC cannot support the building of the United States 5th largest MEGA-Solar-Power-Plant in the middle of our residential neighborhoods unless all of the threats to our lake, streams, water, roads, health and property values are adequately assessed and mitigated in the “Special Use Permit” being considered by the Planning Commission and the Board of Supervisors.

We implore the Board of Supervisors and the Planning Commission to view our comments in the context of:

(1) the Land Use Section of Spotsylvania County’s Comprehensive Plan which directs that “Renewable energy generation facilities, such as solar, geothermal, or wind, should be sited and designed to minimize detrimental impacts to neighboring properties, uses, and roadways….”; and

(2) the Spotsylvania County Special Use Standards applicable to solar facilities specifying that “The planning commission shall not recommend, nor shall the board of supervisors approve....” a Special Use Permit unless it satisfies the following standards: (Zoning Code Sec. 23-4.5.7. - Standards of Review, both subsection (a) General Standards and subsection (d) Solar Energy Facilities which sets forth specific standards for solar facility decommissioning and restoration, access to the site, noise requirements, electrical/mechanical codes, certain Virginia and County environmental laws, only biodegradable cleaning products, screening, view shed analysis, airport proximity, and construction phasing plan. For example, we believe that a Special Use Permit that does not contain the Conditions described below would be in violation of at least the standards in the following paragraphs: “(1) That the proposed use is in accord with the comprehensive plan and other official plans adopted by the County; (3) That the proposed use will not hinder or discourage the appropriate development or use of adjacent land and buildings or impair the value thereof; (4) That the proposed use will not adversely affect the health or safety of persons residing or working in the neighborhood of the proposed use; (5) That the proposed use will not be detrimental to the public welfare or injurious to property or improvements within the neighborhood; and (8) That the proposed use will have no unduly adverse impact on environmental or natural resources.”

County Must Mandate More Detailed Fully-Engineered Site Plan before Hearings

Given the EXTRAORDINARY size and challenges this project presents, we believe Spotsylvania County citizens can only be protected from harm if sPower is required to submit UPFRONT for public viewing and for a detailed review and analysis by County Planning staff a Fully-Engineered Final Site Plan that includes an overall Environmental Management System (EMS) as suggested by DEQ (Virginia Department of Environmental Quality), designed to avoid severe risk and at least the following, but not limited to:

(1) a Water Source Plan that will not collapse the local aquifer and lead to the loss of drinking water for thousands of citizens and the depletion of water levels in Fawn Lake or any taxpayer expense or induced harm to the county water service, including the existing infrastructure water supply;

(2) a Stormwater/Ground-Stabilization Management Plan to prevent tons of sludge from polluting the local aquifer, Po River and Chesapeake Bay watershed like what happened on the 200 acre solar site in Essex County (only 3-5% of the sPower site);

(3) a Site Clearing Plan that does not involve burning of 3-6,000 acres of cutover that will cause serious health problems and bankrupt the Fawn Lake restaurant and golf club (who will hold weddings and charity golf events in the midst of stench and billowing smoke?);

(4) an Erosion/Sedimentation Plan that will not send phosphorous-laden fertilizers and other chemicals into Fawn Lake and surrounding neighborhoods which would cause environmentally destructive algae blooms and loss of recreational activities on the lake; and that will not use biosolids laden with pathogens and toxic chemicals to amend/fertilize soil.

(5) an Emergency Response Plan that will prevent the toxic and Geno-toxic cadmium in broken solar panels from poisoning our lake, streams and groundwater and downstream Po, Mattaponi and York Rivers and the Chesapeake Bay and prevent wildfires from breaking out in the cutover and solar panel fields;

(6) a Site Plan that sets back solar operations at least 300 feet from our properties and that includes berms and a green screen along the entire property line of all area homes to prevent hazardous runoff and to reduce visual eyesores and noise; and

(7) a Remediation and Decommissioning Plan that will prevent abandonment of a toxic waste dump by requiring a guarantee of payment for the full cost of these activities and by making financially responsible FTP Power, LLC (dba sPower) and successor entities (and not only the subsidiaries Sustainable Property Holdings, LLC and/or sPower Development Corporation, LLC).

Special Use Permit Conditions Requested to Prevent and Mitigate Harm.

We believe Spotsylvania County and its citizens can only be protected from harm if the three Special Use Permits contain specific conditions to prevent and mitigate such harm, as described below. We believe that these conditions will be found to be “reasonable” in any forum in which they are considered.

Additional information is also available that has been extensively researched to substantiate the need for the requested Conditions in the Special Use Permit. We also endorse the recommendation by DEQ that the applicants use Best Management Practices (BMP).

I. Requested Conditions related to the Use of County Water and Well Drilling and the Prohibition of the Extraction of Industrial Levels of Water

The findings below are dispositive of the need for the following SUP Conditions:

1. Require that the total water volume obtained from all wells drilled on Sites A, B and C in the already stressed local aquifer be limited to no more than 300,000 gallons/month as would be required by state law if the sites were located just a few miles east on the other side of Rt. 95, to the extent that the results of drilling tests demonstrate such extraction will not cause harm to the aquifer at such levels;

2. Require the metering of any wells drilled in the county and monthly reporting to the County;

3. Require, before construction begins, the installation of a monitoring well for each well positioned so as to accurately monitor on a daily basis (with reporting daily/weekly/monthly as necessary) the water levels in the aquifer(s) from which water will be extracted;

4. Include provisions enabling the County to obtain information related to the wells and water extraction at any time and to order a reduction or cessation of the extraction of well water if the applicant violates the extraction limitations, if the monitoring data shows that the aquifer has or is likely to be negatively impacted if water were to be extracted at previous levels, and if drought conditions reasonably warrant such a reduction or cessation;

5. Require the tests related to any proposed wells, including step tests for performance analysis and aquifer drilling, testing and analysis for depth, water quality and sustainability in drought and other conditions be complete and sufficient to assess the vulnerability of the aquifer and non-harmful levels of water extraction;

6. Require a study of and fully-engineered plan for any proposed use of county water followed by a review by an independent engineering expert to certify that the upgrades, changes in water lines, pumps and connections, etc. and level of peak daily/weekly/monthly use will not negatively impact county water reserves or existing county water services to Fawn Lake and other areas of the county and require the reduction or cessation of county water when specified conditions occur, such as the diminution of county water reserves during droughts;

7. Ensure that county residents are not charged and do not suffer tax increases for any of the above-described changes and that the applicant is charged for water usage in the same manner as other consumers;

8. Require the applicant to consider alternative sources of obtaining water for construction and operation such as settlement ponds, bioswales and other means described in the GEO SEER, LLC report dated April 13, 2018 (previously provided to the County) in order to reduce stress on the local aquifer and county water resources;

9. Require any water treatment facilities on the site to meet reasonable standards to prevent harm to neighbors and the environment; and

10. Ensure that any water tanks are not visible from any adjoining properties.

We believe that a Special Use Permit that does not contain the Conditions described above would be in violation of the County Special Use Standards in at least the following paragraphs: “(4) That the proposed use will not adversely affect the health or safety of persons residing or working in the neighborhood of the proposed use; (5) That the proposed use will not be detrimental to the public welfare or injurious to property or improvements within the neighborhood; and (8) That the proposed use will have no unduly adverse impact on environmental or natural resources.”

Scientific Evidence Warns of Severe Harm: The April 13, 2018 GEO SEER, LLC report (previously provided) from a well-credentialed PHD GIS expert clearly states that “The current plan, as provided by sPower, would lead to the collapse of the area aquifer, sink holes, mass erosion and increased costs to residents, agricultural areas and Spotsylvania County as additional more expensive wells (or installation of county water utility lines) will be required....”. We strongly urge County authorities to prevent the extraction of industrial levels of water that would (1) collapse the aquifer and deny potentially thousands of Spotsylvania County residents their drinking water, and (2) negatively impact the springs that serve as the only source of water keeping Fawn Lake levels up during periods of drought (a permanent drop in water levels would leave docks dry and prevent boats from entering the lake for recreational activities).

Independent Study is Needed: We agree with the Virginia Department of Inland Game and Fisheries statement submitted by DEQ in connection with sPower’s application to the State Corporation Commission: “DGIF is concerned that the application has not fully evaluated the potential impact of ground water withdrawal to the surrounding watershed supporting [certain endangered species]”. Given the GEO SEER conclusions and the DGIF concern, we believe it is only prudent and reasonable that the potential for damage to the aquifer, existing wells and Fawn Lake be expertly assessed by means of an independent study and analysis (by a professional hydrogeologist certified by the American Institute of Hydrology (AIH) or the American Institute for Professional Geologists) of any on-site drilling tests and hydrology study(s) already conducted. Expert recommendations should be used to set inspection frequencies (e.g. perhaps once or twice daily during peak extraction periods), water extraction cessation rules related to reductions in the level of the water table, etc.

Denial of Requested Conditions is Not an Option: Adverse consequences to homeowners of a mistake in assessing the risk to the local aquifer would be catastrophic and irreversible, e.g. dry wells, lack of water for agricultural irrigation and a decline in Fawn Lake’s normal water level which would prevent a mandated flow from the lake to farms below the dam. Also, a drop in the Fawn Lake water level would prevent golf irrigation and boating and recreational access. Dry wells would require the County to run county water lines to the affected properties costing likely-prohibitive millions of dollars. Dry wells and docks would inevitably lead to plunging property values and county property tax revenues which would offset or exceed any increased tax revenue from the solar facility [1].

Water Treatment Facility Regulation: The mineral content of the water extracted from the local aquifer may not meet the non-streaking standards needed by the applicant to adequately clean the 1.8 million First Solar Series 6 Solar panels and the presence of sediment may make the water unsuitable to use in firefighting equipment. This should be determined in advance of any consideration of the Special Use Permit and the details included in a fully-engineered site plan. If such conditions are found to be the case, any water treatment facilities proposed to be used or built on the site to extract unwanted mineral/sediment content should be closely scrutinized under all of the County Special Use Standards, including the decommissioning requirements, and subsequently monitored for regulatory compliance.

County GIS Office Study Needed: We also suggest that the county GIS office conduct an independent study of the applicant construction plan. The study should include loss of carbon sink, routes for the equipment to travel and general spatial analytics. Costs incurred such as the purchase of WV3 imagery and additional required plug-ins should be covered by sPower.

Carbon Sink:

1. Purchase WV3 data May 2016 and May 2018 of the proposed construction site

2. Load data into GIS platform

3. Merge the data

4. Orthorectify the data

5. Determine vegetation by type and calculate current carbon sequestration amounts

6. Create feature files of the area for both years.

7. Calculate area of growth in 2016

8. Calculate area of growth 2018

9. Determine area of replanting sPower will need to achieve after purchase of the site properties in order to comply with State Forestry guidelines

General Spatial Analytics:

1. Download the .dem file for Spotsylvania County and convert the correct projection.

2. Convert the .dem file to DETED L2

3.Determine current slope of the planed areas

1. From slope predict amount of land re-formation required for 2% grade of panel areas.

2. From slope predict runoff to riparian zones

3. Preform view shed of the area to homes 360.

4. Load TAZ.shp file

5. Load Address.shp file

6. Join TAZ and Address tables

7. Calculate tax loss to areas adjacent to power plant site at 3%, 5%, and 8%

8. Load Stream.shp

9. Produce buffer around streams to meet all applicable laws, or extended if necessary

10. Produce intersect of buffer and construction area

Transport routes

1. Map surrounding lines of communication and determine best route for heavy transport

2. Determine road wear due to heavy transport on class 3 road systems

[Footnote 1] An explanation of the potential instability of water levels in Fawn Lake may be helpful in understanding how a marginal change in water levels stemming from damage to the local aquifer could prove catastrophic. Fawn Lake is replenished with water from Greenfield Creek and a number of springs leading from the aquifer. The entire watershed area for the 288 acre lake is very small, covering only about 4.1 square miles, so local impacts are very consequential. If the solar facility water consumption reduces water flow into the lake, then the lake level will decline over time, especially during droughts. Lake levels typically decline starting in late summer as seasonal rainfall diminishes. The reduced lake levels can persist until early spring when rainfalls increase. This indicates that the lake level is already sensitive to rainfall amounts. A further reduction in water flow into the lake could be catastrophic to the lake and its beneficial use by the children and adult residents of Fawn Lake. Of note is the requirement that Fawn Lake release water to downstream farms to help meet their agricultural needs. If water levels in Fawn Lake decline because of the applicant’s increased stress on the local aquifer, not only Fawn Lake residents but local farmers will be negatively impacted.

II. Requested Conditions to Prohibit the Burning of Cutover and for Fire Protection

We believe the findings below are dispositive of the need for inclusion of the following SUP Conditions:

1. Require that NO BURNING be permitted on the site, particularly the clearing of cutover during construction, and that alternative means be required to remove the cutover and other debris, e.g. mulching, transport offsite, etc.;

2. Require strategically placed fire detection monitors to alert local authorities; and

3. Require strategically placed lightning protection systems.

Burning a Severe Health Hazard: A new study is not needed for the applicant and the County to understand the severe harm that will be inflicted on local residents from the burning of tons and tons of cutover and woody debris cleared from up to 6,350 acres. The prevailing southerly and westerly winds blowing over the site will pour smoke and ash directly into Fawn Lake and other neighboring homes. The first to feel the impact will be a senior living section in which many people already have chronic breathing and other severe medical conditions which will worsen or cause them to move. Also, the continual contamination of the Fawn Lake restaurant and golf facilities will lead to their potential bankruptcy when potential patrons turn away after they learn of the constant stream of smoke and stench pouring over wedding, dining and charity and other events.

Site A of the proposed solar facility is a vast 5000 acre flammable debris field that extends up to the 1.5 mile border with the Fawn Lake community, and several other residential areas around the periphery. The debris is composed of thousands of tons of dead/felled trees, stumps, branches, brush, leaves and pine needles. Open burning of the magnitude required to reduce such a huge amount of debris will likely go on for the entire 12-18 months of construction. The intense heat from the fires will propel huge clouds of smoke, ash, soot and embers up into the atmosphere where they will disperse and fall back to the surface on residences, schools, playgrounds, parks, day care centers and athletic fields.

We note that atmospheric temperature inversions (not an uncommon phenomenon) are known to trap concentrated smoke and ash clouds near ground level. And since there are residential areas all around the site, there will likely be health impacts regardless of wind direction.

We believe that even employing means of burning, such as deep/shallow trench burners which can break down, will be inadequate to mitigate the harm described. Specifically, the applicant has proposed using the AirBurner 2018 Model T-300 Trench Burner. The Trench Burner is not an enclosed unit and the manufacturer lists the following problems with the technology: “designed for short term use, 10-13 foot trenches need to be dug, rocks and roots can be a problem, trench walls must be vertical for pollution control benefits to be effective, trench must be dry; no water run-off and the open trench can be very dangerous.”

Health Risks Detailed by EPA: According to the EPA, “smoke is a complex mixture of gases and fine particles produced when wood and other organic materials burn. The biggest health threat is from the microscopic particles that penetrate deep into the lungs. They can cause a range of health problems from watery eyes to aggravated chronic heart and lung disease. Exposure is even linked to premature death.” Those who are at greatest risk are:

• Children, including teenagers because their respiratory systems are still developing and they breathe more air and pollution per pound of body weight than adults. Children are more likely to be outdoors and are more likely to have asthma

• Pregnant women due to potential health risks to both the mother and developing fetus

• Persons with lung or heart diseases such as angina, chronic obstructive pulmonary disease, emphysema or asthma

III. Requested Condition to Prohibit the Use of Biosolids

We believe the findings below are dispositive of the need for the inclusion of the following SUP Condition:

1. Require that NO BIOSOLIDS be permitted on the site and that alternative means be employed to stabilize the soil.

We believe that a Special Use Permit that does not contain the Conditions described above would be in violation of the County Special Use Standards in at least the following paragraphs: “(4) That the proposed use will not adversely affect the health or safety of persons residing or working in the neighborhood of the proposed use; and (8) That the proposed use will have no unduly adverse impact on environmental or natural resources.”

Biosolids Present Severe Risk of Harm: A new study is not needed for the applicant and the County to understand that using biosolids as a means to fertilize grass seed or to otherwise stabilize the soils on the site, regardless of how they are spread, can cause severe harm to not only individuals on the immediate borders of the facility, but also the entire Spotsylvania community if prescription drugs, heavy metals and other toxic and harmful substances are not fully degraded in the biosolids used. Runoff containing harmful biosolids would present a clear threat to the quality of water extracted from the aquifer across the entire county and other jurisdictions drawing water from downstream rivers.

Applicant Intends Not to Use Biosolids: This condition should be included regardless of the statement that the “Joint Applicants do not intend to use biosolids” as stated by the applicants during State Corporation Commission proceedings in response to interrogatories as to the intended use of biosolids. (see May 9, 2018 Responses to May 2, 2018 Interrogatories from Russell J. Mueller, Mueller Question II-11: “….have the Joint Applicants or other related entities decided or considering using biosolids? ….).

IV. Requested Conditions to Prohibit the Use of Phosphorous/Fertilizers/Chemicals

We believe the findings below are dispositive of the need for the inclusion of the following SUP Conditions:

1. Require a condition that bars the use of use any phosphorous or similar fertilizer, toxic, geo-toxic, or other chemicals during construction or operation of the solar facility and that only the most efficient, least toxic pesticides and herbicides are used and that no chemical cleaning agents be used;

2. Require County pre-approval of the use of any other chemicals not otherwise prohibited and application of such chemicals by certified professionals.

We believe that a Special Use Permit that does not contain the Conditions described above would be in violation of the County General Special Use Standards in at least the following paragraphs: “(4) That the proposed use will not adversely affect the health or safety of persons residing or working in the neighborhood of the proposed use; (5) That the proposed use will not be detrimental to the public welfare or injurious to property or improvements within the neighborhood; and (8) That the proposed use will have no unduly adverse impact on environmental or natural resources.”

Phosphorous/Chemicals Present a Severe Risk of Harm: Even small amounts of fertilizer containing phosphorous or other chemicals conducive to the growth of harmful algae blooms introduced by runoff into the lake could render it unsuitable for swimming and other types of recreation. Experience has shown that even very large bodies of water are not exempt from virulent algae blooms stemming from agricultural nutrients, turning them into masses of green smelly ooze.

Other chemicals used in construction, herbicides, pesticides and solar panel cleaning agents, if introduced into the lake and local streams and ponds, could swiftly lead to polluted local waters that could ultimately impact the Whitehall and Greenfield Creeks, the Po River, the Mattaponi River, the York River and ultimately the Chesapeake Bay. Of particular concern would be runoff containing any toxic materials from the solar panels in the event the casings and interior panels are damaged (see further information in the section addressing catastrophic risks).

A new study is not needed for the applicant and the County to understand that phosphorous laden fertilizers and other harmful chemicals (such as cleaning agents, etc.) used on the site, if allowed to become airborne and blown into neighboring Fawn Lake, ponds, and streams, will result in severe harm to the use of such water resources because of the destructive algae blooms and pollution such materials will cause. Likewise, any runoff from the site containing such chemicals will result in the same harm. The fully-engineered site plan must contain a list of all chemicals, etc. that are proposed to be used.

We anticipate that thousands of gallons of cleaning agents might be used to clean the 1.8 million panels thus creating the potential to harm people, birds, fish, etc. In this connection, we recommend that the Special Use Permit and other applicable permits require that such cleaning agents be prohibited.

Applicant Intends Not to Use Phosphorous/Chemicals: This condition should be included regardless of the statement that certain chemicals will not be used as stated by the applicant during State Corporation Commission proceedings in response to interrogatories as to the intended use of phosphorous and other chemicals. (see May 9, 2018 Responses to May 2, 2018 Interrogatories from Russell J. Mueller, Mueller Question II-21: “Will the Joint Applicants use any phosphorous, toxic, geo-toxic, or other chemicals during construction or operation of the facility…..”; Response: “The Joint Applicants will not utilize any of the listed chemicals or methods during construction and operation….”).

V. Requested Conditions to Prevent Sight, Sound and Runoff Pollution with Setbacks and Berms, etc.

We believe the findings below are dispositive of the need for the inclusion of the following SUP Conditions:

1. Require, as described more fully below, a Fully-Engineered Site Plan that sets back solar operations, fences and any water or other structures at least 300 feet from neighboring properties and that includes berms and a green screen along the entire property line, particularly bordering area homes, and

2. Require that the facility be configured to avoid glare beyond the exterior property lines,

3. Require a height limitation, not higher than 15 feet, for structures on site unless not visible under any conditions from neighboring property lines.

4. Require a performance guarantee in the amount of 115% of the cost of the landscaping used for screening with submission to the County prior to the issuance of any applicable permits which must remain valid until 100% opacity is reached. Should 100% opacity not be reached within 3 years of the issuance of applicable permits, the County should be able to draw upon the performance guarantee and install the required supplemental landscaping (if supplemental landscaping is installed, additional time for growth should be allowed and the balance of the performance guarantee shall remain valid until 100% opacity is reached).

We believe that a Special Use Permit that does not contain the Conditions described above would be in violation of the County General Special Use Standards in at least the following paragraphs: “(3) That the proposed use will not hinder or discourage the appropriate development or use of adjacent land and buildings or impair the value thereof; (4) That the proposed use will not adversely affect the health or safety of persons residing or working in the neighborhood of the proposed use; (5) That the proposed use will not be detrimental to the public welfare or injurious to property or improvements within the neighborhood; and (8) That the proposed use will have no unduly adverse impact on environmental or natural resources.” The same comment applies to the special solar section, “(d)(6) SEFs shall be screened as determined by the Board of Supervisors in order to minimize visibility and aesthetic impact to neighboring uses and roadways.”

Need for Minimum 300 Foot Setbacks: A new study is not needed for the applicant and the County to understand the harm presented to residents and property values from the loud noise produced by trucks, construction grading and pounding of steel solar panel structures, etc.; from the previously-described runoff of phosphorous-laden fertilizers and other harmful chemicals,; and from the visual eyesores stemming from solar fields as far as the eye can see. In addition, studies show a significant temperature increase in the areas around even small solar power plants and that the increase may extend out horizontally by at least 300 meters. This so-called thermal or heat island effect is a significant reason the solar panels and operations should be set back at a significant distance from bordering properties. These factors (that can adversely affect health and the environment) can be mitigated by, among other things, putting distance between resident properties and the solar panels and other facility operational structures as described in the requested conditions.

Need for Effective Green Screening: Research indicates that robust screening (e.g. berms, trees, shrubbery, and fencing) must be provided to adequately block views, glare and sounds and maximize the effectiveness of the screening year round. Selection and placement of the various elements will depend on the topography and existing view shed. Perimeter screening must be installed as early in the construction phase as possible, preferably as site regrading is underway and perimeter erosion and stormwater management controls are installed. A landscape architect or certified arborist report should be required to certify that 100% opacity will reach as tall as the tallest panel at maximum height within 3 years. Trees used for screening must be planted in two or more staggered rows, a maximum of 15 feet apart and all evergreen tree plantings must be at least 6 feet tall. In addition, all deciduous tree plantings must have a minimum caliper of two inches measured six inches above the final grade. Also, berms consistent with the drainage plan should be contoured to blend in with the landscape, with a cross-sectional slope not exceeding 1.5 and fully landscaped with appropriate vegetation.

VI. Requested Conditions to Prevent Harm from Hazardous Solar Panels

We believe the findings below are dispositive of the need for the inclusion of the following SUP Condition:

1. Require that the applicant produce and agree to abide by an Emergency Management Plan that would immediately remove broken solar panels, and affected soil from the site in an environmentally safe manner and specify the methods to be used and the ultimate resting place for such materials so as not to cause a toxic waste site to be created in this or another area; this can best be prevented by prohibiting the use of solar panels containing cadmium in any form, including cadmium-telluride.

EMS Plan Needed: Specific Emergency Management Plans are needed to prevent harm from broken solar panels regardless of composition. The use of panels containing cadmium-tellurium present the greatest risk to people and the environment regardless if the risk of leaching is 70%, 50% or even 1%. Any leaching from cadmium-tellurium solar panels into the soil, surface waters and groundwater when the panels are broken to the extent that such toxic and geno-toxic chemicals are exposed is a long-term risk to which the County and its citizens should not be exposed, the results being irreversible. As one of the most toxic substances strictly regulated by OSHA during the manufacture of such CdTe solar panels, any exposure of such substances outside of their glass/steel casings could cause a toxic calamity from the local area and waterways all the way to the Chesapeake Bay. A key fact currently unknown is whether the First Solar Series 6 CdTe solar panels were even manufactured in the United States and subject to the strict OSHA standards.

Studies Indicate 1-73% Leaching Rates from CdTe Solar Panels: It is estimated that each First Solar Series 6 panel contains about 30 grams of Cadmium (Cd) and a similar quantity of Tellurium (Te). Therefore, with the 1.8 million panels originally proposed, the total amount of Cadmium positioned over this site is over 100,000 pounds or proportionately less if the number of CdTe panels used is reduced. Some sources indicate that leaching rates from broken panels will likely be small, but even relatively small leaching rates can result in the release of a significant amount of toxic material into the soil and water. Cadmium is highly toxic and genotoxic and exposure can cause cancer, and other diseases in the body’s cardiovascular, renal, gastrointestinal, neurological, reproductive and respiratory systems. This risk, although somewhat diminished when cadmium is combined with tellurium, makes for a compelling argument that the Special Use Permit specifically bar the use of such materials. Some studies indicate that panel leaching rates can be very high in landfills under the right conditions, so the panels should be recycled rather than dumped in a landfill, for example, up to 73% of cadmium and 21% of tellurium leached when exposed to acidic soil, see the article (Leaching of Cadmium and Tellurium from Cadmium Telluride (CdTe) Thin-Film Solar Panels Under Simulated Landfill Conditions, Ramos-Ruiz et.al., April 2017). Also, see End-of-Life Management: Solar Photovoltaic Panels, as published by IRENA, June 2016.

Extreme Weather Events Pose Definite Risks: The local area has recently experienced an earthquake causing severe damage, hurricane winds, and several high-wind-tornado-like events that cleared a path of trees in the solar site, extending into Fawn Lake. Recent events such as this in Puerto Rico and elsewhere caused the destruction of entire solar farms, strewing their solar panels over the landscape. Local weather and atmospheric conditions are conducive to the reoccurrence of these catastrophic events, thus making solar panel destruction a near certainty in the long-run.

VII. Requested Conditions to Prevent Erosion and Stormwater Runoff and Damage

We believe that the findings below are dispositive of the need for the inclusion of the following SUP Conditions:

1. Require the applicant to file with the County a “Fully-engineered Site Plan” including a full description and narrative of all facilities, solar panels, water tanks, etc. and details of materials and positioning of all erosion/stormwater mitigation measures, to enable the County and the public to review the plan before any report on the SUP is presented to the Planning Commission;

2. Require a study and review of the fully-engineered site plan by an independent engineering expert, designated by the County, to certify that the plan will adequately prevent an adverse impact on the environment;

3. Require that a maximum of 400 acres, as recommended by County staff, be developed at any one time to ensure that the implemented erosion and storm water control plans are effective in preventing harm to the surrounding environment. To enable the adjustment of methods demonstrated to be less than satisfactory to prevent harm, it should be required that the construction of each parcel be completed and final grading and seeding be in place with sufficient growth established before site preparation is begun for each subsequent parcel. As soon as possible, temporary stabilization must be replaced by permanent techniques. The next 400-acre development shall be contingent upon successful erosion and storm water management for the completed parcel and subject to additional requirements by the County and County approval. The Minimum Standards Checklist Virginia 4VAC50-30-40 (renumbered 9VAC25-940-40) shall be completed for each 400-acre parcel.

4. Require soil testing across the site before construction begins to establish a baseline for soil quality.

5. Require testing for Sulfidic/Acidic soils to the full depths of excavation, according to the Site Regrading Plan. This is particularly important in locations where extensive excavation is planned. The presence of Sulfidic/Acidic soils will require modifications to the regrading plan to avoid or mitigate adverse impacts.

6. Require that erosion, sediment, and storm water runoff controls be installed around the perimeter of each 400-acre parcel being developed before overall regrading of that parcel can begin. This is necessary to protect the streams, wetlands, and neighboring properties while regrading of the area occurs.

7. Require that the performance Bond required under Section 8-38 of the County Ordinance shall be equal to the total cost of providing erosion and sediment control improvements to the entire project site (3500 acres), as determined by the County Administrator.

8. Require that during the storm prone months of April through September, the developer shall have a plan in place and be able to execute such plan, to contain the runoff from an emergent event such as a Severe Thunderstorm or Flash Flood scenario. Storm water estimates should include evaluation of the 4”- 6” rains which we encountered in June and July of this year (2018).

9. Require that as part of the final Erosion and Sediment Control Plan and Stormwater Management Plan, the developer’s Site Plan must address the unique configuration of impervious solar panels located over newly established grade.

10. Require scheduled periodic inspections, plus inspections after significant storms, to verify the controls are in place and effective.

11. Require appropriate ground cover/grass as recommended by the County and DGIF for soil stabilization and insure that it is maintained so as not to create a fire hazard. Grass and weeds shall not exceed two feet in height at any time.

12. Require native pollinator habitat as recommended by DGIF and the County environmental engineer.

13. Prohibit truck and other traffic into and out of Fawn Lake gates.

14. Require that inspections of the sites be allowed at any time by appropriate County, Virginia and USACE personnel with inspections mandated after significant weather/earthquake events.

We believe that the above conditions are necessary to be included in the Special Use Permit or the following County Special Use Standards will be violated: that is, Paragraph (5) “That the proposed use will not be detrimental to the public welfare or injurious to property or improvements within the neighborhood”; and Paragraph (8) “That the proposed use will have no unduly adverse impact on environmental or natural resources.”

There are several potential risks stemming from the construction of the solar facility that could result in the above-mentioned adverse impact.

Soil Type and Removal Presents Serious Risks: The type soil that is present in this region is a significant concern. A very limited amount of topsoil is present, and below that is Virginia clay. It will be very difficult to re-establish a vegetative ground cover to prevent erosion once the site has been cleared and the ground has been disturbed. Experience by a local farmer is that it can take 5 years to establish grass cover on previously forested land, even when hay and manure is used to condition the soil.

In addition, according to the recent GEO SEER LLC report, “Since none of the area soil is hydric, water from seasonal rain showers and snow storms will not percolate the soil, instead they will pool on the top shelf and runoff down the slope.”

Furthermore, serious environmental consequences can occur if sulfidic soils are disturbed by excavation or regrading of the soil. The following references are to two case studies where serious problems were encountered: Active Acid Sulfate Soils in the Upper Coastal Plain of Virginia: Two Reclamation Case Studies - 2008 pages 5-9; and

https://www.asmr.us/portals/0/Documents/Reclamation-Matters/ASMR-Reclamation-Matters-2008-Spring.pdf

Heavy Rains and Stormwater Runoff Presents Serious Risks: This major land use project places a significant stormwater and erosion risk on the surrounding properties and wetlands from the inevitable heavy rain events which develop in our region at least once annually. A similar but much smaller solar installation, only 200 acres, in Essex County had catastrophic erosion issue occur this winter. Heavy rains resulted in Muddy Gut Creek and the surrounding wetlands around it, smothered in sediment. The Friends of the Rappahannock reported; “The full extent of the damage cannot be estimated as cloudy water continues to make its way through several miles of meandering streams and boggy wetlands before releasing a light brown cloud into the Rappahannock River.” The Virginia Department of Environmental Quality as well as an independent consulting firm specializing in erosion and sediment control was brought in to assist Essex County with damage control. It should be obvious that extra care and caution must be required for this solar facility which is 17.5 times larger than the Essex County facility.

Runoff Calculations: Stormwater runoff calculations for the large areas of solar panels over grade are not simple calculations because they include two totally different elements combined in the runoff zone, a graded area and rows of impervious solar cells. These calculations are not directly addressed in the Virginia Stormwater Management Handbook or the NRCS National Engineering Handbook Part 630/Hydrology. These calculations need to be viewed as a situation similar to the integral sum of the individual components from 1 to n for a slope, where the individual components represent the runoff from each panel row and in-between grade combination, and n represents the number of rows.

Erosion Control: As stated directly in the Virginia Erosion Control Handbook, Basic Principles of Design and Control;

“2. Minimize the extent of the area exposed at one time and the duration of exposure.”

Thus, a requirement that each subsequent 400-acre section be developed only after prior sections are permanently stabilized is necessary to insure that there is adequate management and control over the area being developed. The SUP should also allow for inspections of the sites at any time, not just after a rainfall, by appropriate County, Virginia and USACE personnel.

VIII. Requested Conditions for Decommissioning/Abandonment/Site-Restoration

We believe that the findings below are dispositive of the need for the inclusion of the following SUP Conditions:

1. The Applicant shall comply with all of the requirements for decommissioning and site restoration included in Spotsylvania County Ordinance No. 23-173 CA17-0009: Solar Energy Facilities.

2. The Applicant shall provide a complete decommissioning plan prepared, sealed and signed by a Virginia licensed engineer. The plan shall include an independent cost estimate of all decommissioning, site restoration, recycling (when fee must be paid), transportation and disposal costs. The plan shall include the source of the information on the recycling costs of the solar panels including those containing cadmium. The plan shall not include any credits, such as the estimated resale or scrap/salvage value of any components. The plan shall also include:

A. an estimate of repair expenses for roadway restoration post-decommissioning,

B. soft costs related to engineering and permitting (such as the Pre-decommissioning file plan, Decommissioning Traffic Impact Assessment, SWPPP, E&S planning etc.),

C. cost to remove new gravel roads (backfilling and restoration to natural contour), and

D. cost to remove or convert SWM ponds, the 3 water tanks and other structures on the site.

3. The surety equivalent/Performance Guarantee bond shall be provided by FTP Power, LLC (dba sPower) and successor entities (in addition to any other appropriate FTP Power subsidiaries—Sustainable Property Holdings, LLC and/or sPower Development Corporation, LLC--or parent corporations as the County may require).

4. The surety equivalent/Performance Guarantee bond shall equal 115 percent of the estimated decommissioning costs, or $41.5 million (per EPRI study) whichever is greater.

5. The surety equivalent/Performance Guarantee bond shall be submitted prior to the start of construction, and must remain in place continuously until the facility has been fully decommissioned and the county approves that it is complete.

6. The solar facility operator shall identify any components that have not operated during the previous quarter, and report them to Spotsylvania County. This reporting is necessary to trigger paragraphs 14-17 of the SEF ordinance.

We believe that a Special Use Permit that does not contain the Conditions described above would be in violation of the Spotsylvania County Ordinance 23-4.5.7 (d): Solar Energy Facilities [related to decommissioning and surety].

Prevent Potential Toxic Waste Site: The risk to the County of the millions of dollars it will cost to decommission the 5th largest solar complex in the U.S. must be fully guaranteed by at least FTP Power (dba sPower) regardless that a subsidiary of this company may be the formal applicant for the Special Use Permit. Abandonment of some or all of the solar facilities without immediate deconstruction and expert and safe removal of the solar panels and land restoration would present the County and surrounding landowners with the presence of potentially one of the largest toxic waste sites in the State. Depending on the mix of panels, the site could contain over 100,000 lbs. of cadmium which is a carcinogen.

Applicant Decommissioning Cost Estimate Deficient: The Applicant’s first decommissioning estimate provide to the County was $1.3 million. This estimate is to decommission a 500MW, $550 million power plant with 1.8 million solar panels. This estimate exhibited a shocking lack of attention to detail and caused many to question their credibility. After being challenged by the County, sPower submitted a new plan estimating a total cost of decommissioning of $5,044,080. This revised estimate contained numerous errors and faulty assumptions. The plan included extensive recycling revenue assumptions that were not documented and not supported. The plan provided no information on where the panels and materials would be recycled. The plan assumed a 25 year project life not the 35 year life that sPower is proposing. The plan only assumed reclamation of 1230 acres of the 6,500 acre site - not 100%.

Recycling a Cost not a Credit: While First Solar originally established a free “take back” program for their panels, they ended that program about 5 years ago. They still recycle their CdTe panels but charge a fee. First Solar currently charges $6.50 per Series 6 panel with a price increase planned for next year. That’s for the CdTe panels - they don’t recycle other types of panels. So depending on the mix of First Solar vs Jinko panels, there will be a cost of at least $10million - $12million to recycle the panels as compared to sPower’s decommissioning plan which assumes an income of $8.2million! This error calls into question sPower’s entire decommissioning cost analysis - an independent analysis is needed.

EPRI Study Demonstrates Cost of Salvage: The Electric Power Research Institute (EPRI) is an independent, nonprofit organization which conducts research, development, and demonstration projects related to electricity generation, delivery and use. EPRI conducted a study (April 2018) to estimate decommissioning costs for a conceptual 11 MW ground-mounted crystalline-silicone fixed-tilt solar PV plant at the end of its useful life. Their key finding was a negative net salvage value of $83/KW which equates to $41.5 million for sPower’s proposed plant. The actual cost for sPower’s plant will be higher since most of their panels will contain cadmium making it more expensive to recycle and the EPRI study assumes panels will be sent to a landfill which should be prohibited for Spotsylvania County (see risks from cadmium in preceding sections).

Reference: EPRI (Electric Power Research Institute) report 3002013116 titled: PV Plant Decommissioning Salvage Value: Conceptual Cost Estimate dtd 18 April 2018.

Other Decommissioning/Recycling Cost Considerations: Another metric to determine the required value of the surety equivalent/Performance Guarantee Bond is 115% of the estimated decommissioning costs. Currituck County, NC as well as other jurisdictions have proposed this metric which accounts for growth or errors in the estimate.

There are many other recycling/decommissioning cost considerations, for example:

-There is no guarantee that PV manufacturers will be around upon decommissioning. Since 2016 Sungevity, Beamreach, Verengo Solar, SunEdison, Yingli Green Energy, Solar World, and Suniva have gone bankrupt.

-There is no 3rd party or public PV recycling program in place in the US.

-There is no regulatory framework in the US for recycling and no market currently exists.

-PV modules contain silver, lead, and other hazardous materials in addition to CdTe.

-There are more than 50,000 different c-Si module types on the market. Where’s the efficiency in recycling those?

-Recycling of PV modules is very energy intensive.

FTP Power, LLC Should be the Responsible Party: The County should not agree to a Special Use Permit that would prevent recoupment of all of the decommissioning and remediation costs because of the dissolution or bankruptcy of a partnership or other entity that would negate the continued issuance of and payment for a surety (a less than creditworthy or bankrupt entity cannot obtain or renew a surety) or preclude liability for upstream corporate entities.

SPower has yet to clear up the “corporate web” requested in paragraph 3 of the Decommissioning section of the County TRC comments. The County specifically requested details on which entity will hold the decommissioning surety. SPower didn’t answer the question and merely referred the County to an sPower white paper which describes corporate structure.

sPower’s filings repeatedly use the term “sPower” to refer to both Sustainable Power Group and sPower Development Co, LLC. For example, paragraph 1 of the GDP narratives describes sPower Development Company LLC as “sPower” while sPower’s white paper refers to Sustainable Power Group as “sPower” in paragraph 3.7.1.

During sworn testimony before the State Corporation Commission on July 12th, the applicant’s representative said that “Joint Applicants will be posting a bond...” The SCC Joint Applicants are the 4 special purpose entities (Pleinmont Solar 1 LLC, Pleinmont Solar 2 LLC, Highlander Solar Station 1 LLC, and Richmond Spider Solar LLC) and can’t be the surety holders since they are neither the entities proposing to purchase the land nor the SUP applicant (per County SEF ordinance requirement, para (d) 12). While these company structures and nomenclature can be confusing, they are critical to determine who is responsible for the project and who is responsible for providing the surety equivalent. The County must require that FTP Power, LLC (dba sPower) provide the surety equivalent along with any other subsidiaries the County considers necessary and appropriate. FTP Power is the entity most likely to have the sustainability and resources to meet the financial requirements of the surety in the future.

Section IX. Additional Requested Conditions

1. Prior to the filing of any report by Planning Staff, the County should have performed an independent Economic Impact Study that includes a detailed analysis of the year by year revenues and expenses the project will generate for the County.

2. Require an Escrow Account in an amount determined by the County which would be sufficient to reimburse the County for the initial and recurring expenses incurred, including engineering and other consultants; inspections, road/water improvements, etc.

3. Require a liability insurance policy in an amount determined by the County to guard against the substantial risks associated with a monumental project of this size.

4. Require a Maintenance Plan to ensure that repairs and mitigation are performed in a timely fashion.

5. Require a Weather/Temperature Plan that would result in the strategic placement of a number of temperature and weather monitoring stations to monitor the weather and the heat island effect as recommended by DGIF.

6. Require a Schedule of Permitted Hours of Operation, particularly during construction operations, which would limit sound/sight/traffic etc. impacts to neighboring properties and roads (preferably only during daylight hours; e.g. 7am-7pm).

Section X. Conclusions

The proposed sPower solar power plant (sited over an area as large as Fredericksburg and producing power over half that of a Lake Anna nuclear reactor) is lacking in detail as to critical elements of its construction and operation. Our plea to the Spotsylvania County Planning Commission and Board of Supervisors is that action be taken on this application to ensure: (1) that the many potential risks of undue harm to the aquifer, the environment and other natural resources, animals and humans be adequately and independently assessed and the conditions for mitigation as recommended in the above sections be included in the Special Use Permit, and (2) that sPower/applicants be required to submit a detailed Fully-Engineered Site Plan (specific and sufficiently validated to avoid or mitigate such risks) to the County before any report to the Planning Commission or hearings take place.

We think that a World-scale solar power plant to be owned and operated by a non-utility should undergo the same extensive and rigorous process that would be required of a utility company planning to build a 500 megawatt facility, particularly given that the project will produce power equal to one-half that of any one of the Lake Anna nuclear reactors and that will cover an area at least six times the size of the nuclear plant. We are also concerned that sPower or another solar operator could be viewing the agricultural properties remaining in the general area as a target for future expansion, thus avoiding an assessment of the more extensive environmental and other risks of a complex even larger in scope than the original one described in the three applications (we note that sPower has notified the PJM grid operator that it intends to expand the original 500 MW input to 800 MW through the same Dominion substation).

Filing a report on the Special Use Permit before these concerns are fully addressed, (including the guaranteed assumption of liability by FTP Power, LLC (dba sPower) and all related and successor entities for the full cost of decommissioning and remediation) would be unacceptable to Concerned Citizens of Fawn Lake and Spotsylvania County.