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The electronics and automotive sectors have called on the US EPA to withdraw provisions in two proposed significant new use rules (SNURs) that would impose restrictions on downstream battery recyclers, arguing that TSCA section 5 is not the correct vehicle for imposing end-of-life restrictions.
In recently submitted comments, trade groups and individual companies said the EPA has other statutory authorities to address lifecycle safety issues and urged the agency to maintain the article exemptions for batteries that are recycled downstream.
More broadly, the agency’s plans to manage end-of-life risks for batteries could open the door for the EPA to contemplate similar downstream restrictions in other sectors, industry groups cautioned.
The proposed SNURs, published in the Federal Register on 24 April, cover two confidential mixed metal oxide (MMO) substances – both described generically as cobalt lithium manganese nickel oxide, metals-doped – used as cathode active materials (CAMs) in batteries. A total of 12 pre-manufacture notices (PMNs) were submitted for the two substances by multiple companies seeking to bring them to market simultaneously.
The proposed rules reflect a standardised scientific assessment framework that the EPA adopted in March as part of its effort to streamline its review of MMO CAMs (see box). The proposals seek to extend to the full market protective measures set out in TSCA consent orders that took effect earlier this year.
As proposed, the SNURs would treat batteries containing the MMOs as articles exempt from the rules’ requirements, but that exemption would lapse once a battery reaches the recycling stage.
Several industry bodies in the automotive and electronics sectors filed comments arguing that this approach would stretch TSCA section 5 in ways the statute was not built to accommodate.
The EPA’s plan to use a SNUR to regulate the lifecycle of a battery may be allowed if the SNUR complies with TSCA, but the statute "was almost certainly not designed for it," the Alliance for Automotive Innovation (Auto Alliance) said.
The trade group also cautioned that the EPA’s plans could open the door to the approach being used more widely.
"Regulating an article throughout its lifecycle based on the chemicals within the article could be applied to almost anything, which, again, is not the intent of this section in TSCA," the Auto Alliance said.
Voiding the article exemption
The lapse of the article exemption typical to TSCA SNURs was at the centre of the objections raised by industry.
Under the proposed rules, the article exemption would no longer apply once a battery containing the MMOs is "shredded or otherwise handled such that there is potential for exposure to or release of the substance", thus requiring reclamation facilities to comply with the SNUR requirements.
The Auto Alliance said this proposed approach "functions like a lifecycle regulation without a traditional lifecycle rulemaking".
The regulatory responsibilities of a substance manufacturer are "qualitatively different" from those of an entity that recovers that substance from an engineered article that may be in use for 15-20 years, the Auto Alliance said.
"This new use of TSCA section 5 would be unique inasmuch that it explicitly identifies a downstream lifecycle stage (recycling) as the dominant risk driver and then use that stage to shape conditions across the entire value chain," it said.
Panasonic said that voiding the article exemption to require reclamation facilities to comply with the SNURs’ requirements represents "an improper method for supporting battery manufacturing and recycling".
An importer of a finished battery "has no meaningful role in how these products are reused/recycled by downstream entities", said the company, which is a leading supplier of lithium-ion battery cells in the US.
"It makes little sense to use TSCA as a means for revamping the environment, health and safety (EHS) regulatory requirements for an entire industry – as well as a major class of products – on the basis of a single chemical ingredient," Panasonic said.
What is more, Panasonic said, statutory mechanisms already exist to manage battery recycling facilities, including the Resource Conservation and Recovery Act, the Clean Air Act and the Clean Water Act.
"The proposed SNUR creates more confusion than necessary when other potential mechanisms already exist," Panasonic said.
Confidentiality concerns
The Chemical Users Coalition (CUC), whose members include Boeing, Airbus, Intel, IBM, and Lockheed Martin, flagged the challenges of complying with SNUR requirements when MMOs used in batteries are often withheld as confidential business information (CBI).
For these particular SNURs, the chemical identities of both substances are masked, making it difficult for downstream companies to determine whether they are present in batteries they import, the coalition said.
For example, one CUC member identified anywhere from zero to more than 700 products globally that could contain the two regulated substances. Without knowledge of the particular substance, the coalition said, importers cannot take meaningful steps to comply.
Moreover, even if companies could trace every MMO contained within a battery they import, "the burden on the article importer would still be significant, and the opportunities for inadvertent compliance failures considerable", the coalition said.
The CUC also raised the possibility that some recycling activities involving the substances may already be ongoing in the US if the MMOs are already being imported in finished products, calling into question whether they qualify as a ‘significant new use’ that can be regulated through a SNUR.
Labelling utility questioned
Several commenters also questioned the practicability of the SNURs’ proposed requirement that batteries or their packaging bear a label alerting recyclers that the product contains substances subject to TSCA restrictions.
By the time a battery reaches a recycling or reclamation facility, the retail packaging would have long since been discarded by the consumer, the Consumer Technology Association (CTA) said. Labels appearing only on packaging would not accompany the battery to the end of life and provide no information to those doing the recycling, it said.
The CTA noted that EPA is separately developing voluntary battery labelling guidelines under the 2021 Infrastructure Investment and Jobs Act through a multi-year, multi-stakeholder process.
A label imposed through a SNUR ahead of that process risks a patchwork outcome rather than the coordinated standard that the EPA's own initiative is designed to produce, it said.
EPA’s MMO framework
The proposed SNURs draw on a package of technical and policy documents the EPA adopted in recent months, which together set out the approach to MMO CAM risk assessment and management the agency has developed over the past four years.
The documents build on a streamlined review initiative announced by the EPA in October 2022, describing the agency’s thinking on environmental fate, environmental hazard, industrial hygiene monitoring, standardising scientific assessment and carrying out risk management for in-scope MMO CAMs.
In describing its standardised assessment approach, the EPA said it may no longer prepare individual risk assessments for in-scope MMOs, but instead apply the framework directly.
The standardised scientific assessment identifies three factors driving the agency's concern for MMOs:
- the high aquatic toxicity of the metal components;
- the high production volumes involved, ranging from approximately one million to 73 million kg/year across submissions the agency has reviewed; and
- the need to rely on screening approaches where site-specific data – particularly for downstream processes and recycling operations – is unavailable, which the agency acknowledged results in "large estimates for releases and exposures" even as the actual magnitude remains uncertain.
The EPA’s standardised risk management policy sets out baseline controls for covered MMOs, including specified dust-capture controls, respiratory and dermal personal protective equipment (PPE) requirements, prohibitions on water releases, and requirements for the disposal of hazardous waste.
Companies may seek modifications to these default restrictions by submitting testing, studies, reports or other information demonstrating that the restrictions are no longer necessary to protect against unreasonable risk, the EPA said.