Hot Question for Energy Storage Answered by Massachusetts Fire Appeals Board

Foley Hoag LLP - Energy and Cleantech Counsel
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Foley Hoag LLP - Energy and Cleantech Counsel

As battery energy storage systems become a more common element of renewable projects, developers are increasingly adding the need to obtain fire code permits to their list of necessary project permits and approvals. Yet because battery storage is a relatively unknown technology for many local fire departments — who have the jurisdiction to issue fire code permits — interpretation and implementation of certain key fire code provisions codes often varies widely from municipality to municipality.  And the practical impacts of such variability are real: they can make permitting a battery storage component unnecessarily complex, drive up project costs, and delay energization.

Fortunately, the Massachusetts Fire Prevention Regulations Appeals Board recently provided critical clarity as to one key component of the Massachusetts state fire code in resolving a permit dispute between a solar developer and a local fire department (full disclosure: Foley Hoag represented the developer). This decision provides valuable guidance and certainty to developers and regulators alike as they negotiate the permitting of cutting-edge battery storage systems.

The issue was this: while the state fire code allows for the installation of pre-engineered battery storage systems, it also requires that those systems be “listed” in accordance with an Underwriters Laboratory standard (known as UL 9540) before a fire code permit can issue.  The local fire department denied the developer’s fire code permit application for a battery energy storage system, on the grounds that the system had not been listed to UL 9540 by an OSHA-approved nationally-recognized test laboratory (“NRTL”). The developer contended that nothing in the Fire Code required listing by an OSHA-approved NRTL, and that listing by any duly recognized nationally or internationally accredited test laboratory (as was indisputably the case here) was sufficient.

The practical importance of this distinction is difficult to overstate: while several test laboratories are duly accredited to list to UL 9540, only one of those laboratories has obtained the (entirely voluntary and optional) status of OSHA approval.  A decision in favor of the fire department would have severely restricted the number of test laboratories whom developers could rely upon to list their battery energy storage systems under the Fire Code, without any associated substantive benefit as to fire safety.

Fortunately, the Board unanimously agreed with the solar developer and vacated the fire department’s denial of the permit. The Board ruled that the State Fire Code “requires only that large scale fire and fault condition testing be conducted or witnessed and reported by an approved testing laboratory for listed pre-engineering and prepackaged battery arrays.” Furthermore, the Board clarified that the Code expressly “does not (and cannot) require that said approve testing laboratory must also be OSHA approved.” Implicitly, the Board’s decision recognized that while the Fire Code does provide fire departments a measure of interpretive discretion, this discretion is not unlimited, and cannot be exercised in a way that contravenes the plain language of the Fire Code itself.

While this may have been one of the first major disputes over how the fire code applies to battery energy storage systems, given the pace of technological advancement and the likelihood of revisions and amendments to state fire codes, it is unlikely to be the last.  However, decisions like this one give developers and fire departments valuable precedents that can help streamline permitting negotiations — and help get projects built both safely and effectively.

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