On October 5, 2022, the U.S. Environmental Protection Agency (“EPA”) announced its plan to streamline the typical review process for Mixed Metal Oxides (“MMOs”), including certain cathode active materials, which are key components in electric vehicles’ lithium-ion batteries, as well as clean energy generation and storage technology, including wind turbines and solar cells.  MMOs can also be used in semiconductors. 

As we have written about previously, increasing the domestic supply of EVs and semiconductors, and expanding the country’s clean energy capacity are among the core policy objectives of the Biden Administration.

Each of these supply chains could utilize these new MMOs, which are not currently listed on the Toxic Substances Control Act (“TSCA”) Inventory.  Because they are not listed, MMOs are subject to Section 5 of TSCA — a point that EPA confirmed in a separate compliance advisory.

Given this backdrop, manufacturers and importers of new MMOs must submit a Premanufacture Notice (“PMN”) to EPA before manufacturing or importing these substances.  Upon receipt of a PMN, EPA considers the potential hazards and exposures associated with the substance, and determines whether steps must be taken to reduce the risk to human health or the environment before the substance can enter the U.S. marketplace.  It is critical that manufacturers and importers submit such a notice when required to do so, including because TSCA prohibits using for a commercial purpose any chemical that the person knew or should have known does not comply with aspects of TSCA, including the requirement to submit a PMN or qualify for an exemption from that requirement.  15 U.S.C. § 2614.  Manufacturers and importers do not need to submit PMN for MMOs already on the inventory (or that become added to the inventory).

EPA’s announced plan to streamline this review process is good news for the EV, clean energy, and semiconductor industries.  Under recent similar streamlining initiatives for biofuels, EPA has been able to complete its review for nearly all of the dozens of PMNs it has received since January 2022.  This streamlining appears to be, in part, a response to concerns that EPA has acknowledged with respect to the speed of its new chemical reviews. 

More details are forthcoming, and the EPA has announced that it will provide outreach and training sessions for interested stakeholders to describe the new streamlined review process.

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Photo of Tyler Williams Tyler Williams

Tyler Williams helps clients across a range of industries address novel privacy and technology issues. Mr. Williams represents clients in complex government enforcement and regulatory matters.

Photo of Thomas Brugato Thomas Brugato

Thomas Brugato is special counsel in the firm’s Washington, DC office. His practice focuses on environmental matters, as well as civil and administrative litigation. He has experience advising clients on a wide variety of environmental issues, including under the Clean Air Act, Clean…

Thomas Brugato is special counsel in the firm’s Washington, DC office. His practice focuses on environmental matters, as well as civil and administrative litigation. He has experience advising clients on a wide variety of environmental issues, including under the Clean Air Act, Clean Water Act, RCRA, CERCLA, EPCRA, TSCA, FIFRA, the Endangered Species Act, and the Occupational Safety and Health Act.

Mr. Brugato has extensive experience with EPA’s Renewable Fuel Standard program. He also has particular expertise in advising companies on environmental-related issues arising in the context of product recalls (such as compliance with PHMSA’s hazardous materials transportation regulations), including recalls under NHTSA or CPSC jurisdiction. Finally, Mr. Brugato has significant experience advising clients on Indian law related issues, particularly relating to the Indian Gaming Regulatory Act and tribal sovereign immunity.