High Voltage, High Stakes: The Outdated Laws and Risks of Damaged EV Storage in Texas
A Lack of Guidance in Texas Law
When it comes to safely towing and storing electric vehicles, the Texas Department of Licensing and Regulation (“TDLR”) is clearly behind the times. Chapters 2303 and 2308 of the Texas Occupations Code (the “TOC”) create comprehensive regulatory regimes for the licensed activities of vehicle towing and storage. However, these chapters and the corresponding regulations in the Chapters 85 and 86 of the Texas Administrative Code (the “TAC”) have a significant omission - a lack of specific guidelines for storing wrecked electric vehicles (“EVs”) and hybrid electric vehicles (“HEVs”). Given the unique risks associated with storing wrecked or damaged EVs and HEVs, legislative and regulatory action is required.
The Risks of Thermal Runaway and Stranded Energy
Two important dangers in storing severely damaged EVs and HEVs involve (1) thermal runaway and (2) stranded energy. Stated simply, thermal runaway is a process whereby an increase in temperature leads to further increases, potentially creating extremely hazardous situations. For those who are interested, a more detailed discussion of thermal runaway and the chemical process involved may be found at OSTI.gov. When this process occurs in the massive batteries inside wrecked EVs, it can create intense long-lasting fires. Stranded energy refers to the residual electrical energy in a damaged battery, posing risks of electric shock or fire. Essentially, it is energy in the battery that has not been discharged, thus becoming “stranded.” When a battery has been compromised, the stranded energy becomes fuel for a fire.
Space Required for Safe Storage of Severely Damaged EVs
The National Highway Traffic Safety Administration (“NHTSA”) recommends storing severely damaged EVs and HEVs at least 50 feet away from other vehicles and structures. To understand how much space that requires, consider that fact that the area of a circle with a 50-foot radius is about 7,853 square feet. That translates to a little less than 1/5 of an acre (18% of an acre to be specific). The safe-storage area recommended for each severely damaged electric or hybrid electric vehicle underscores not only the need for specific guidelines in Texas for storing these vehicles, but also a reexamination of the maximum regulated rates for storing severely damaged EVs and HEVs.
NHTSA’s Recommendation for Ventilation and the Contradicting Texas VSF Regulations
NHTSA recommends that the passenger and cargo compartments of severely damaged vehicles with a lithium-ion battery remain ventilated. Under current Texas law, however, there is no provision in the TOC or TAC that would permit a VSF to access a vehicle to create ventilation. For example, while the TAC requires “reasonable storage efforts” such as locking doors, rolling up windows, and closing doors, hatchbacks, and rooftops (16 TAC § 85.719), each of these actions involves sealing off portions of the vehicle – not leaving spaces open for ventilation. This same section requires a VSF, as part of the impoundment process, to use plastic or canvas to close off broken doors, windows, convertible tops, sunroofs, and the like. As these procedures were developed only for the safe storage of internal combustion vehicles (“ICVs”), they are in direct contradiction to NHTSA safety recommendations regarding severely damaged EVs.
Comparing Storage Volume in Safe Storage of Severely Damaged EVs versus ICVs
Comparing the number of damaged ICVs to the number of severely damaged EVs that could be stored on a VSF lot drives home cost of EV storage. For example, assume that a vehicle storage facility has two acres of storage on its facility dedicated to vehicle storage. Assuming a 50-foot radius is required to safely store each severely damaged EV (as NHTSA recommends), only about 11 severely damaged EVs could be stored on a 2-acre facility.
On the other hand, let’s review how many ICVs could be stored on the same 2-acre VSF. For this analysis, we will assume that each vehicle requires a space of about 18x9 feet and that aisles and lanes are required for access. Using the same two acre lot and these assumptions on space, a VSF with two acres of storage could store 323 internal combustion vehicles.
The NTSB Safety Study’s Findings – Clear Risks to Roadside Responders
The safety risks to roadside responders from lithium ion batteries are well-established and have been known for some time. In 2020, the National Transportation Safety Board (“NTSB”) issued a Safety Report detailing the safety risks to emergency responders from lithium-ion battery fires in electrical vehicles. That Safety Report found:
Crash damage and resulting fires may prevent first responders from accessing the high voltage disconnects in electric vehicles;
The instructions in most manufacturers’ emergency response guides for fighting high-voltage lithium-ion battery fires lack necessary, vehicle-specific details on suppressing the fires;
Thermal runaway and multiple battery reignitions after initial fire suppression are safety risks in high voltage lithium ion batteries;
The energy stranded energy remaining in a damaged high-voltage lithium-ion battery poses a risk of electrical shock and creates the potential thermal runaway that can result in reignition and fire;
High-voltage lithium-ion batteries in EVS, when damaged by crash forces, present special challenges to first and second responders because of insufficient information from manufacturers on procedures for mitigating the risks of stranded energy.
Importantly, the Safety Report’s findings specifically addressed the infeasibility of a VSF storing an electric vehicle with a damaged lithium ion battery inside the recommended 50-foot radius:
“The NTSB concludes that storing an electric vehicle with a damaged high-voltage lithium-ion battery inside the recommended 50-foot-radius clear area may be infeasible at tow or storage yards. Safety Risks to Emergency Responders from Lithium Ion Battery Fires, Findings, Page ix.
A video discussing the findings of the Safety Report is available HERE.
Texas Incident Management Towing Companies and VSFs Routinely Handle Damaged EVs
The risks associated with compromised high voltage batteries are unique to incident management (“IM”) towing and storage. IM towing companies perform what are commonly called “police-initiated” tows. The vehicle storage facilities that accept IM-towed EVs are take on the responsibility of storing damaged EVs – often near other vehicles and structures. Thus, there are few industries in Texas that are more likely to encounter a severely damaged EV than an IM towing company or a vehicle storage facility. Notwithstanding this fact, there remains a near-complete absence in regulatory guidance for IM towing companies that tow and VSFs that store severely damaged EVs and HEVs.
The Need for Review of Texas EV Storage Regulations and EV Daily Storage Fees
In Texas, the maximum rates that a VSF may charge are set by Chapter 16 of the Texas Administrative Code in Section 85.722. Currently, the notification fee cannot exceed $50, the daily storage fee is $21.03 (for vehicles 25 feet or less in length) or $36.80 (for vehicles exceeding 25 feet), and the impoundment fee is capped at $21.03. This fee structure, however, was developed when nearly every stored vehicle was driven by an internal combustion engine.
Given the current NHTSA guidelines and NTSB Safety Report’s findings, it is clear that VSFs need much more space to safely store severely damaged EVs. This increase in required storage space creates a corresponding increase in direct cost of vehicle storage. Texas law already accounts for the space needed to store a vehicle in setting a daily storge fee . The TAC sets different daily storage fees for vehicles 25 feet in length or less (currently $21.03) versus those that are greater than 25 feet in length (currently $36.80). However, none of the current fees takes into consideration the cost of storage based on NHTSA’s recommended 50-foot safe radius.
Conclusion: The Need for Regulatory Guidance
The TOC and TAC fail to address the specific risks posed by storing severely damaged EVs and HEVs at Texas vehicle storage facilities. Specifically, the current laws allow severely damaged EVs to be stored at VSFs that are not equipped to store these vehicles and where a 50-foot safe-storage radius may not exist. With the increased presence of EVs and HEVs on Texas roadways, it is imperative that Texas laws be revised to reflect the unique risks associated with their storage. Specifically, TDLR needs to promulgate regulations that (1) take into consideration actual space required for severely damaged EV storage; (2) provide guidance on how to mitigate the dangers of thermal runaway and stranded energy; and (3) allow a VSF to charge a fee that accounts for the space required for safe storage.
If TDLR continues in failing to provide this guidance, it is inviting disaster. The absence of regulatory guidance in EV towing and storage creates a situation where EVs in danger of thermal runaway will be towed and stored in an unsafe manner. If a thermal runaway event occurs during towing or storage, history has demonstrated that it will create a significant danger to the people, property, and structures near the vehicle.
While updates to Texas VSF laws are clearly needed, this cannot happen until the next legislative session. In the interim, TDLR should step up and provide regulatory guidance. Doing so will help ensure safe recovery, towing, and storage of EVs and HEVs in this state. However, neither the state nor TDLR can fix this problem without addressing the cost of the space required for safe EV storage. If EVs and HEVs truly require nearly 1/5 of an acre for safe storage following a severe crash, they will also require the creation of a corresponding increased daily storage fee - at least until the vehicles are determined safe for ordinary storage.