The recent statement released by CPFL, an energy concessionaire operating in São Paulo and Rio Grande do Sul, regarding the mandatory use of inverters with AFCI (Arc Fault Circuit Interrupter) devices in DG (distributed generation) projects, has raised questions among professionals in the sector.
The main issue raised concerns the acceptance of inverters manufactured without the safety device or imported before the validity of the INMETRO Ordinance 515/2023.
O INMETRO reported on its official page that with regard to the marketing of inverters: “no deadlines were established for marketing by manufacturers, importers and distributors, so that inverters that do not comply with this ordinance can be marketed until stock runs out”.
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Additional clarifications (INMETRO Ordinance No. 515/2023). Source: INMETRO
Ao Canal Solar lawyers pointed out that no energy concessionaire can demand equipment requirements beyond INMETRO standards.
According to Marina Meyer Falcão, Legal Director and Regulatory Secretary of INEL (National Institute of Clean Energy), the concessionaire must act in accordance with the rules of INMETRO and ANEEL, in addition to fully meeting the requirements of Law 14.300/2022.
“This means that any measure or requirement implemented by a concessionaire must respect established technical and legal regulations, ensuring that market agents operate under clear and fair rules,” she said.
Marina also highlighted that INEL has been in dialogue with INMETRO on this topic, considering its importance for the sector. According to her, uniformity of rules is essential to avoid legal uncertainty and ensure that all market players can operate efficiently and within legal parameters.
Frederico Boschin, a lawyer at the firm Ferrari Boschin Advogados Associados, says that the issue is clear: the INMETRO rule must prevail, and any attempt to disregard this determination constitutes an affront to compliance with INMETRO's official regulation.
“CPFL’s requirements, as a private company, cannot under any circumstances override the standards established by an official body, such as INMETRO”, states Boschin.
The lawyer also highlights that, if CPFL refuses, the response must be objective: the INMETRO standard must prevail over the concessionaire's internal regulations.
“If there is a dispute, it is a matter of documenting the date of entry into the market, the date of manufacture or import of the inverter and the date of stock. From this point on, there is no reason not to apply the official rule”, he adds.
Lawyer Paulo Armando, from the Paulo Armando Garcia da Cruz law firm, highlights that “CPFL's decision to require the mandatory use of photovoltaic inverters with AFCI in distributed generation projects, without considering existing stocks or manufacturing dates prior to INMETRO's ordinances, would constitute an abusive measure and contrary to the principles of Economic Freedom”.
“In this sense, INMETRO itself has been providing guidance on the validity of the sale of equipment that made up the existing stock of companies in the sector, at the time of the amendment to the Ordinance”, he adds.
“Therefore, the concessionaire's actions must comply with higher legislation, especially the principles of reasonableness, proportionality and good faith, since it cannot impose restrictions that harm competitiveness and economic activity, especially when there is clarity in the guidelines established by INMETRO standards”, he adds.
Lawyer Thiago Bao, from the Bao Ribeiro Advogados law firm, explains that the mandatory use of protection systems against electric arcs was included in Ordinance 140, of 21/03/2024, through Ordinance 515, of 10/01/2023, both from INMETRO.
“Ordinance 515, unlike Ordinance 140, did not establish transition deadlines for the implementation of the requirement. Ordinance 140, on the other hand, stipulated clear deadlines: 24 months for manufacturing and importing and 36 months for marketing, starting from 21/03/2024”, he says.
He assesses that the absence of specific transition rules for the mandatory AFCI in Ordinance 515 and INMETRO's guidance allowing the sale of equipment in stock without the required protection generate two relevant legal problems. "The first is the lack of definition regarding the immediate applicability of the mandatory AFCI; the second, the contradiction between the standards and INMETRO's administrative guidance", he comments.
Bao emphasizes that energy concessionaires must strictly comply with INMETRO standards, including the transition deadlines established in Ordinance 140. “It is not up to the distributor to interpret or apply these standards in a discretionary manner, nor to follow individual opinions of INMETRO employees. Likewise, the ANEEL does not have the competence to interpret INMETRO standards in situations like this”, he adds.
Given the legal uncertainty faced by those who have equipment in stock without AFCI, Bao states that, if access is denied by the distributor, the solution will depend on legal action. The Judiciary is the competent body to interpret rules and decide on conflicts between public and private acts.
What should I do if the dealership rejects my order?
The report by Canal Solar received reports of rejection by CPFL where the justification is that the inverter does not present a certificate with concession registration for INMETRO Ordinance 140.
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Image sent to the newsroom Canal Solar
When asked about the actions that market professionals should take in this situation, Marina detailed the steps to be followed.
“In cases where distributed generation projects are rejected by the concessionaire due to the absence of an AFCI device in the inverter, it is recommended that the integrator contact the company that sold the equipment (distributor, importer or manufacturer) and request proof that the inverter has an AFCI. If the device is not available, the integrator can request a document proving that the product was already in stock before the effective date of Ordinance 140, which was December 1, 2024. With the documentation, the integrator can submit the request to the concessionaire again,” explained Marina.
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An answer
The article is correct, what was not clear was that this restriction applies to inverters having or not having AFCI, but this does not disqualify the ABNT 5410 standard that requires the use of AFCI. So the Engineer or Electrical Technician when designing will have to place the AFCI in the junction panel, then the concessionaire can block the project without due compliance with the ABNT Standard. Now, no one is complying with the standard for simpler things, imagine that. I see new constructions without IDR or DDR, I even see without a grounding bar, neutral bar, etc.