Consultation on national rules for the storage of electrical energy

Introduction

As a result of the electrification of society, there is a growing need to store electricity. Electrical energy is often stored in the form of an energy storage system or an energy carrier — for example, a Battery Energy Storage System (BESS). Energy storage systems and energy carriers offer climate and economic benefits, such as buffer storage and reduction of grid congestion. However, their use also entails safety risks. The primary risk is what is known as a thermal runaway: an uncontrolled rise in temperature that can lead to fire or explosion. 

To address these potential risks, a draft of the Amending Decree on Energy Storage Systems for Electrical Energy and Storage of Energy Carriers for Electrical Energy (Amending Decree, Wijzigingsbesluit energieopslagsystemen voor elektrische energie en opslag van energiedragers voor elektrische energie) is open for public consultation until 28 April 2026. For an explanation of how the regulation of external safety under the Environment and Planning Act (Omgevingswet) works in general, we refer to an earlier blog on this website. We discuss the background to this Amending Decree and the key changes it introduces below. 

Background: from a decentralised patchwork to central uniformity 

At present, there is no national policy or legislation for energy storage systems for electrical energy and the storage or deployment of energy carriers for electrical energy. It is possible to regulate these activities at a decentralised level, for example through a customised requirement (maatwerkvoorschrift) or rules in the environmental plan (omgevingsplan). To provide competent authorities with a framework, two PGS guidelines were adopted in December 2023 by the Administrative Environment Council: PGS 37-1 (technical and organisational measures for the safe operation of an energy storage system) and PGS 37-2 (measures for the storage of lithium-containing energy carriers). According to the Amending Decree, these local regulatory options have given rise to a diverse range of methods for determining and weighing matters such as the location-specific risk, definitions, the scope of application of the PGS guidelines and permit obligations. 

According to the Amending Decree, this local application of the PGS guidelines hampers uniform implementation and creates unnecessary regulatory and administrative burdens for both decentralised competent authorities and project initiators. The Amending Decree aims to end this lack of uniformity by bringing these activities under a single, nationally consistent regulatory framework. 

The key changes 

The Amending Decree introduces national rules through amendments to three Orders in Council: the Decree on Activities in the Physical Environment (Besluit activiteiten leefomgeving, Bal), the Decree on the Quality of the Physical Environment (Besluit kwaliteit leefomgeving, Bkl) and the Environmental Management Decree (Omgevingsbesluit). 

1. Designation as an Environmentally Burdensome Activity — Bal

The Amending Decree designates two activities as environmentally burdensome activities (milieubelastende activiteiten) under the Bal: (i) the operation of an energy storage system for electrical energy with an energy storage capacity of more than 20 kWh, and (ii) the storage and deployment of energy carriers for electrical energy. 

The operation of an energy storage system is subject to a permit requirement in the following three cases: 

• Systems with a capacity of more than 50 MWh;
• Where the system consists of a combination of multiple energy storage systems for electrical energy that are technically interconnected with a total capacity of at least 400 MWh; or
• A system using energy carriers other than lithium-containing ones, because the risks, measures and safety distances applicable to other energy carriers differ and the standard package of measures from PGS 37-1 is not sufficient. 

A permit requirement applies to the storage of energy carriers in the following cases: 

• Storage locations larger than 2,500 m²;
• Storage of more than 10,000 kg; or
• Storage of energy carriers other than lithium-containing ones. 

Where the permit requirement does not apply, a notification obligation will apply to these environmentally burdensome activities, and they must comply with the general rules set out in the Bal.

2. Safety Distances: Location-Specific Risk and Risk Attention Areas — Bal and Bkl

Safety distances are linked to both environmentally burdensome activities in both the Bal and the Bkl. These distances concern the location-specific risk (plaatsgebonden risico). In the Bal, the distances are relatively small and apply to activities not subject to a permit requirement. The Bkl sets out distances for both permit-required and non-permit-required activities. The fixed distances have been calculated using the Environmental Safety Calculation Method for Lithium-Containing Energy Carriers developed by the National Institute for Public Health and the Environment (Rijksinstituut voor Volksgezondheid en Milieu, RIVM). For situations falling under the permit requirement, no fixed distances are used; instead, distances are calculated based on the specific activity for which a permit is sought. The Amending Decree takes as its starting point the general rule that the operator of an activity must position that activity so that the relevant distance remains within the boundary of the location where the activity is carried out. An exception to this general rule is possible where compliance with the distances to the boundary of the location is factually impossible. In that case, the distances to restricted vulnerable, vulnerable and highly vulnerable buildings (beperkt kwetsbare, kwetsbare en zeer kwetsbare gebouwen) and restricted vulnerable and vulnerable locations (beperkt kwetsbare en kwetsbare locaties) must in any event be observed. 

In addition to the location-specific risk, the Amending Decree also designates attention areas for the protection of the societal risk. Attention areas (aandachtsgebieden) are areas that indicate where people indoors, without additional measures, may be insufficiently protected against the consequences of accidents involving hazardous substances. In the environmental plan, account must be taken of the societal risk for restricted vulnerable, vulnerable and highly vulnerable buildings and restricted vulnerable and vulnerable locations within an attention area (article 5.15(1) Bkl). 

For the energy storage system, a toxic cloud attention area (gifwolkaandachtsgebied) of 10 m from the centre of the energy storage system applies, as well as an explosion attention area (explosieaandachtsgebied) of 20 m from the centre of the energy storage system, insofar as the energy storage system has an internal free space of more than 1 m³. 

3. PGS 37-1 and PGS 37-2 Legally Embedded — Bal

In order to safeguard environmental safety, an energy storage system for electrical energy must comply with the PGS 37-1 guideline referred to above. This requirement will be legally embedded. The storage of energy carriers for electrical energy, or the deployment for commercial purposes of vehicles, equipment or apparatus in which energy carriers for electrical energy have been installed, must comply with PGS 37-2. Both PGS guidelines are also added to the list of information documents on best available techniques (BAT, best beschikbare technieken) in the Bkl. The application of the PGS guidelines will thereby become more uniform. 

4. Registration in the External Safety Register — Bkl

The Amending Decree also ensures that administrative bodies are required to collect data on the operation of energy storage systems for electrical energy and the storage of energy carriers for electrical energy, and to record that data in the External Safety Register (Register Externe Veiligheid, REV). The data from the External Safety Register will be made accessible to the public through the Living Environment Atlas. In accordance with administrative agreements, a period of one year following the entry into force of the Amending Decree has been established before administrative bodies must comply with their registration obligations under the External Safety Register. 

5. Role of the Safety Region — Environmental Management Decree 

The Amending Decree also provides that the board of the safety region will become a statutory adviser when assessing permit applications for both the operation of an energy storage system and the operation of a location for the storage of energy carriers. This concerns an advisory right in the context of fire prevention and disaster management. 

Transitional law

The Amending Decree also provides transitional law for already existing activities. Where, prior to the entry into force of the Amending Decree, an energy storage system for electrical energy or a location for the storage of energy carriers is already being operated and that activity is classified as subject to a notification obligation under the Amending Decree, a notification by operation of law  for a period of two years will apply from the date of entry into force. Where the Amending Decree classifies the activity as subject to a permit requirement, an environmental permit by operation of law for a period of two years will apply from the date of entry into force. In both cases, this transitional law applies only where the nature and scale of the operation do not differ from those of the operation as it existed prior to the entry into force of the Amending Decree. After the expiry of these two years, the activity must have been notified, or an environmental permit for an environmentally burdensome activity must have entered into force. 

The Amending Decree further provides that a permit requirement cannot exist simultaneously under both the Bal and the environmental plan. Where a permit requirement applies under the rules of the Amending Decree, the permit requirement arising from the environmental plan will cease to apply. 

Exceptions for certain car parks and use of energy carriers

The Amending Decree also provides for a number of exceptions. For example, the designation of the storage of energy carriers as an environmentally burdensome activity does not include the operation of a location for deploying apparatus, vehicles or equipment on a car park that forms part of a public road, a section of a public road, or a car park that is open to public traffic. Nor does the use of an energy carrier for electrical energy fall within the designation. The explanatory memorandum to the Amending Decree states that, as a result of this latter exception, the charging of an energy carrier in a device is also not classified as an environmentally burdensome activity, as the energy carrier is designed for this purpose and it is therefore not considered a form of storage. Non-public car parks and storage facilities where the operator's own (company) vehicles are charged are likewise not classified as environmentally burdensome activities. 

Practical implications 

It is to be welcomed that uniform rules are now being prepared for energy storage systems. This will make their permissibility more predictable. However, the introduction of a permit requirement for larger storage systems may give rise to additional work and to additional (appeal) proceedings, potentially also on grounds of competitive interests. 

Furthermore, the transitional rules offer protection for a period of two years only. After the expiry of those two years, the activity must have been notified or an environmental permit for an environmentally burdensome activity must have entered into force. The new general rules must also be complied with, including those set out in PGS 37-1 and PGS 37-2. It is conceivable that not all existing energy storage systems will comply with those rules. This could make it burdensome to obtain a valid environmental permit in time. 

The explanatory memorandum states, with regard to the regulatory burden effects, that the total number of businesses to which PGS 37-1 applies is approximately 3,100. For PGS 37-2, this figure is approximately 12,700. A breakdown of the number of businesses subject to a notification or permit obligation is not yet available.