BESS Safety and Emergency Response: Legal Issues for Developers and Property Owners

As battery energy storage system (BESS) projects move from planning to construction, developers and property owners must address an issue that extends well beyond zoning approvals and interconnection agreements: what happens when something goes wrong? To avoid unforeseen liability, developers should address fire code compliance, emergency response planning, contractual risk allocation, and environmental liability before construction begins.

Key Takeaways

• Safety compliance begins with project design. Developers must identify applicable fire codes, technical standards, and local requirements before construction.
• Emergency response planning is essential. Early coordination with fire officials can help address safety concerns and prevent approval delays.
• Liability extends beyond the operator. Developers, equipment suppliers, contractors, and property owners may face exposure depending on their roles.
• Contracts and insurance matter. Project agreements should clearly allocate responsibility for safety, maintenance, emergency response, and environmental cleanup.
• Regulatory requirements are evolving. Developers should monitor changes in state and local BESS safety requirements throughout the project’s life cycle.

This article is Part 5 of our Battery Storage Legal Roadmap Series. If you missed them, start with Part 1: Utility-Scale Battery Storage Projects: A Legal Roadmap for Developers, Property Owners and Other Stakeholders, Part 2: Before You Buy: Managing Real Estate and Permitting Risk for BESS Projects in New York and New Jersey, Part 3: BESS Interconnection: Managing Grid, Cost, and Schedule Risk, and Part 4: BESS Project Agreements: Allocating Risk Among Developers, EPC Contractors, and Equipment Suppliers. See all articles in the series here.

Understanding the BESS Safety Regulatory Framework

Although modern battery storage facilities incorporate multiple layers of safety technology, lithium-ion batteries present unique fire and emergency response challenges. A malfunction can trigger thermal runaway, a process in which a battery cell overheats and potentially causes neighboring cells to fail. Depending on the circumstances, these incidents can produce intense heat, flammable gases, and hazardous smoke, complicating traditional firefighting methods.

Given these risks, utility-scale battery storage projects may face specialized safety requirements involving multiple regulatory authorities. The applicable rules depend on the project’s location, battery technology, capacity, configuration, and relationship to other energy infrastructure.

The National Fire Protection Association’s NFPA 855, Standard for the Installation of Stationary Energy Storage Systems, provides an important framework for battery storage safety. It addresses system installation, fire protection, separation distances, and emergency planning. Section 1207 of the International Fire Code also includes provisions for energy storage systems, including requirements related to fire safety and emergency response.

However, these standards are not automatically enforceable in every jurisdiction. Their legal effect depends on whether jurisdictions have adopted or incorporated them into applicable state and local codes, including any amendments or exceptions.

Developers must also consider testing and certification requirements. UL 9540 addresses the safety of energy storage systems and equipment, while UL 9540A establishes a testing method used to evaluate fire propagation associated with thermal runaway. Because UL 9540A is a test method rather than a pass/fail certification, authorities having jurisdiction often use its results to evaluate separation distances and other design features. These standards serve different purposes, and compliance with one does not necessarily establish compliance with the other.

For projects in New Jersey, New York, and Pennsylvania, identifying the applicable edition of each code and standard should be an early part of the permitting process. A design that satisfies a manufacturer’s specifications may still require modifications to comply with the requirements imposed by the authority having jurisdiction.

Emergency Response Planning Is More Than a Technical Requirement

One of the most significant legal and operational issues facing BESS developers is emergency response planning. Unlike conventional building fires, battery storage incidents may require specialized procedures, including monitoring for hazardous gases, establishing exclusion zones, and managing the possibility of reignition.

An effective emergency response plan should address potential incidents throughout the facility’s operating life, including fires, equipment failures, flooding, and other conditions that could compromise battery safety. Depending on applicable requirements, the plan may need to identify emergency contacts, shutdown procedures, access routes, site-specific hazards, and coordination protocols for first responders.

Local fire departments also play an important role. Many departments have limited experience responding to large-scale battery storage incidents, particularly in communities where these facilities are relatively new. Developers should therefore engage fire officials early in the planning process rather than waiting until the project approaches final approval.

From a legal standpoint, emergency response planning may also become a condition of site plan approval, a fire code requirement, or an obligation imposed through a development agreement. Developers should understand which commitments are legally enforceable, who is responsible for implementing them, and how those obligations will be maintained if ownership or operational control changes.

State and Local Requirements in New Jersey, New York, and Pennsylvania

Although national safety standards provide a common technical foundation, BESS developers must account for differences in state and local regulation.

• New Jersey: Battery storage projects must be evaluated under applicable provisions of the Uniform Construction Code (N.J.A.C. 5:23), Uniform Fire Code (N.J.A.C. 5:70), and local land use requirements. Depending on the project’s characteristics, fire officials, construction officials, and planning or zoning boards may each review safety-related issues. Developers should anticipate questions about emergency access, setbacks, fire protection systems, and proximity to neighboring properties.
• New York: New York has placed particular emphasis on battery storage safety following several high-profile incidents. The state has developed energy storage safety guidance and model regulatory resources, including NYSERDA’s Battery Energy Storage System Guidebook, addressing issues such as emergency response, inspections, and coordination with local fire departments. New York also updated its Fire Code in July 2025, effective December 31, 2025. Section 1207 addresses electrical energy storage systems, including enhanced safety oversight and independent peer review requirements for installations exceeding specified capacity thresholds. Developers must distinguish between statewide requirements, locally adopted regulations, and recommendations not incorporated into binding law. New York City projects are governed by the City’s Fire Code and FDNY rules rather than the statewide code.
• Pennsylvania: Pennsylvania projects may be subject to the Pennsylvania Uniform Construction Code, any fire code adopted by the municipality, and municipal land use ordinances. Local regulatory approaches can vary considerably, so early coordination with municipal officials and emergency responders is especially important. Developers should not assume requirements in one municipality will apply to another.

Across all three states, the central challenge is ensuring technical safety measures meet the specific legal requirements governing the proposed site. Developers should also monitor regulatory changes, as battery storage safety requirements continue to evolve.

Who Is Liable When a BESS Incident Occurs?

A battery storage fire or other serious incident can create substantial financial exposure, particularly when neighboring properties, public infrastructure, or emergency personnel are affected. Potential claims may involve negligence, property damage, product defects, breach of contract, or environmental contamination.

Responsibility will depend on the cause of the incident, the parties’ respective duties, and the terms of their agreements. For example, a developer may face allegations involving inadequate site design or failure to comply with applicable safety requirements. An equipment manufacturer may face product liability claims arising from an alleged battery defect, while an operator could face liability for deficient maintenance, monitoring, or emergency response procedures.

Property owners should pay particular attention to projects developed or operated by third parties. Leasing land for a BESS facility does not necessarily insulate the landowner from litigation or potential environmental liability. The extent of exposure will depend on the circumstances, applicable law, and the property owner’s involvement in the project.

Carefully drafted agreements should address responsibility for regulatory compliance, equipment maintenance, emergency response, incident reporting, and remediation. Evaluate indemnification provisions, insurance requirements, and financial assurances together to determine whether the parties have adequately allocated foreseeable risks.

Environmental Liability and Incident Cleanup

The legal consequences of a BESS incident may continue long after a fire has been extinguished. Depending on the battery chemistry and incident circumstances, damaged equipment, contaminated runoff, firefighting water, and other debris may require specialized handling and disposal.

An incident may trigger reporting, investigation, or remediation obligations under federal or state environmental laws. In New Jersey, for example, the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq., imposes strict, joint and several liability on any person “in any way responsible” for a discharge of a hazardous substance, which can include the owner of the property. Whether these requirements apply depends on the substances involved, whether a reportable release occurred, and the characteristics of the affected property.

For property owners, this raises questions about responsibility for environmental investigation and cleanup, particularly where the BESS operator is a separate entity. Lease agreements should address post-incident access to the property, allocation of cleanup costs, cooperation with regulators, and the financial resources available to complete remediation.

Developers should also evaluate stormwater management, drainage, and containment considerations during project design. Addressing these issues before construction may reduce both the consequences of an incident and the potential for subsequent disputes.

Insurance and Contractual Risk Allocation

Insurance is another critical component of BESS risk management. Traditional property and general liability policies may not adequately address all risks associated with battery storage operations, particularly those involving thermal runaway, business interruption, environmental damage, or equipment replacement.

Developers and property owners should work with experienced insurance professionals to evaluate coverage terms, exclusions, deductibles, and policy limits. Pay particular attention to whether the relevant policies address fire-related losses, pollution conditions, and claims involving neighboring properties.

Project agreements should also establish clear responsibility for maintaining coverage throughout construction, operation, and decommissioning. Insurance provisions must be coordinated with indemnification obligations and other contractual remedies, rather than treated as separate boilerplate requirements.

Where the facility is located on leased property, the landowner should consider whether additional insured status, environmental coverage, or other financial protections are appropriate. These protections become particularly important when the project operator is a special-purpose entity with limited assets.

Frequently Asked Questions

Are NFPA 855 and the International Fire Code automatically enforceable for a BESS project?

No. These standards are not automatically enforceable in every jurisdiction. Their legal effect depends on whether they have been adopted or incorporated into applicable state and local codes, including any amendments or exceptions.

When should emergency response planning with local fire officials begin?

Early in the planning process, rather than when the project approaches final approval. Emergency response planning may also become a condition of site plan approval, a fire code requirement, or an obligation imposed through a development agreement.

Can a property owner be liable for an incident at a BESS facility on leased land?

Potentially, yes. Leasing land for a BESS facility does not necessarily insulate the landowner from litigation or potential environmental liability. The extent of exposure depends on the circumstances, applicable law, and the property owner’s involvement in the project.

Addressing Safety and Liability Before Construction

For BESS developers, safety compliance should be incorporated into project planning from the outset rather than addressed as a final permitting requirement. Early legal and technical coordination can help identify potential conflicts between project design, local approvals, emergency response capabilities, and contractual obligations.

Property owners should likewise conduct appropriate due diligence before entering into long-term leases or development agreements. Understanding the proposed technology, applicable safety requirements, insurance arrangements, and responsibility for future incidents is essential to evaluating the risks associated with hosting a battery storage facility.

As battery energy storage deployment expands across the region, developers and property owners can expect continued scrutiny from regulators, municipal officials, and neighboring communities. Projects that address these concerns proactively will be better positioned to navigate the approval process, manage operational risks, and avoid costly disputes.

How Scarinci Hollenbeck Can Help

Scarinci Hollenbeck advises developers, property owners, investors, and businesses on the legal and regulatory issues associated with energy infrastructure projects throughout New Jersey, New York, and Pennsylvania. Our Commercial Real Estate and Land Use attorneys assist clients with land use approvals, regulatory compliance, environmental matters, real estate transactions, contract negotiations, and dispute resolution. As battery storage projects become more prevalent, we help clients identify potential legal risks, structure agreements that allocate responsibility appropriately, and navigate the complex regulatory requirements governing BESS development and operation.