In February 2020, lead battery organisation Battery Council International (BCI) hired its first in-house lawyer to lead regulatory and legislative efforts. BEST spoke to Roger Miksad ahead of the 2022 BCI Convention and PowerMart to discuss his role, and how the organisation is working to ensure lead batteries remain an essential part of the global energy storage industry for the next ten years.
Despite wearing two hats (senior vice president and general counsel), Roger Miksad’s goals for BCI are laser-focused— to drive the association’s support of its members’ success, although the means for achieving them are very different.
There is no doubt the lead battery industry faces significant challenges— from lithium-ion and emerging technologies as well as legislative issues— and, as the industry’s primary trade association in North America, BCI takes its responsibility to champion the industry extremely seriously.
BCI’s stated mission is to promote the responsible use of lead batteries for all applications and to represent the battery industry on environmental, health, safety, economic, and other government policy issues.
The association also lobbies to ensure the regulations applicable to the lead battery industry are rational and based on sound science. They do this to keep their workers and communities safe and, importantly, remain commercially competitive on a global stage.
Champions for lead batteries
“That is to say, we are champions for one of the crown jewel manufacturing industries here in the US and abroad, and our goals are to ensure that lead batteries are recognised for their status as the only truly sustainable energy storage product,” says Miksad, who joined BCI to lead regulatory and legislative efforts on Environmental, Health and Safety (EHS) and other matters, and serve as BCI’s in-house legal advisor.
“Over the past two years, the pandemic has caused us, like many manufacturing industries, to face significant challenges. Of particular impact, we have continued to see the US and other regions more deeply commit to greenhouse gas reductions, including the deployment of renewable energy generation and electric vehicles.
“Lead batteries play a key role in enabling both of those technologies, and BCI has stepped up our engagement with regulators and key stakeholders to support our members’ efforts in those areas.”
BCI’s inaugural appointment
Miksad’s appointment wasn’t a huge surprise— he has, after all, worked for BCI throughout his career. Prior to his “in-house” role, he spent a decade working for the US-based organisation as a member of David Weinberg’s team at Wiley Rein— Weinberg himself had been legal counsel to BCI since 1989.
His was a familiar face at BCI conventions, committee meetings, and other events where he presented and briefed the organisation on its regulatory and legislative efforts, authored the BCI Battery Labelling Manual, and led the association’s legislative and regulatory advocacy efforts in California, Washington, and other US states.
Since starting at Wiley Rein in 2009, Miksad has counselled a range of chemical and product manufacturers on EHS-related regulatory matters before the U.S. Environmental Protection Agency, the U.S. Occupational Safety and Health Administration, the U.S. and the Federal Trade Commission to name a few.
Being an “in-house” lawyer provides the distinct advantage of allowing Miksad to dedicate all his time to the issues facing BCI and its members.
“I also am able to have broader insights into our members’ needs and struggles,” he says. “I greatly enjoyed my time in private practice and learned an incredible amount from the team I worked with at Wiley. But, when the opportunity came to focus on a core set of issues for a single industry, I jumped at the chance.”
In the two years Miksad has been in his role, BCI has seen the results of several long-term efforts come to fruition, and has launched some new ones as well.
On the regulatory front, one of his biggest achievements came early in 2021 when BCI obtained a final decision from the California Department of Toxic Substances Control (DTSC) to not evaluate lead batteries for a potential ban.
That decision confirmed the association’s long-standing position that lead batteries are not appropriate for review under California’s Safer Consumer Products program because they are an essential technology in supporting the US’ effort to move to a more electrified, de-carbonised future.
“Lead batteries are irreplaceable in key uses such as those supporting internal combustion vehicles, and no single battery chemistry can meet all of the nation’s energy storage needs,” says Miksad.
“Further, the industry’s continuing innovation and voluntary improvement efforts, in combination with the world’s strictest regulatory environment, are ensuring that potential impacts to California’s users, workers, and communities are minimised.”
The association has also launched several key programs; perhaps the most exciting, says Miksad, was the launch of the Women in the Global Battery Industry initiative at the start of 2022. The organisation founded to promote and develop the growth of women in the battery industry is led by Julie McClure of Mac Engineering.
“I’m very excited by the interest from BCI members and non-members alike,” says Miksad. “I encourage all industry members to pay attention to this group’s work, and for interested women to join.
The pressure of a global pandemic
The past two years of COVID-19-forced lockdowns have been tough for battery makers across the globe, and many manufacturers have faced key challenges. First, manufacturing operations are necessarily people-intensive and those workers could not simply work from home. COVID itself changed the way the industry operates, and has required it to adopt new measures to provide safe workspaces and accommodate workers that needed time off.
Furthermore, the global supply chain disruptions have caused delays in receiving raw materials and components as well as raising costs across the board.
But, because the US has such a strong domestic lead battery recycling sector, providing more than 80% of the lead needed from North American smelters, the industry was uniquely positioned to cope with those pressures better than many, says Miksad.
“As to when things will return to normal, I have yet to see a single prediction on that front come true, but I think we are seeing things head in that direction,” he says.
“Here in the US, the last two years have given the structure of the American workforce a solid shake-up; such that employers nationwide are facing a combination of rising raw materials costs, lower staff availability and, as a result, workers are demanding higher wages.
“Certainly, with time, these economic issues will find a new equilibrium, but those increasing costs are placing pressures on all our members and requiring them to stay flexible and nimble in their plans.”
With no one predicting the depth of the pandemic’s reach, the next two years— never mind the next decade— in the lead battery industry’s future has become increasingly hard to forecast. But Miksad confidently says the next ten years will see the battery industry continue to dominate the news and take an increasingly important role in society.
The growth of non-lead chemistry batteries over the past ten years has been eye-opening, but lead batteries also have positive growth trends, and a bright future, he says. “I believe the next ten years will continue to solidify the critical role batteries play in society.”
When accepting his role two years ago, Miksad spoke of two major programs concerning the lead industry: California’s Occupational Safety and Health Administration (Cal-OSHA) regulations and the Toxic Substances Control Act (TSCA).
The Cal-OSHA regulatory updates and the long-promised federal OSHA revisitation of the occupational health rules for lead have the potential to bring significant cost increases to the lead industry and others. For BCI members— who are committed to controlling employee lead exposures and employee blood lead levels, and the industry’s voluntary excellence— there is a strong argument against government overreach. After all, things have been heading in the right direction for a long while now.
As a collective, Miksad believes the industry is already doing an outstanding job, and excessive government interference in facility operations is unnecessary. He says that in the past the industry has seen instances of regulators attempting to push requirements onto employers that were both incredibly burdensome and costly, but which did not offer health protections to workers.
Under the TSCA statutory requirements, the U.S. Environmental Protection Agency (EPA) is required to evaluate all chemicals in commerce for the risks they might pose, and decide whether additional regulatory restrictions are necessary— up to and including additional environmental controls, workplace controls, or even market restrictions.
EPA is required to prioritise a list of chemicals on an existing list of chemicals that the agency previously believed merited attention (the “2014 EPA Work Plan”). Lead and lead compounds are on that list as a single entry.
“Given lead’s toxicological profile, it is clear that EPA will take a close and hard look at the chemical, and industry will need to be prepared to assist EPA with that evaluation,” says Miksad.
Another concern for the lead battery industry is the USA Batteries Act, which sets out to eliminate a tax that gives foreign manufacturers an advantage on the cost of raw materials. If the tax is allowed to stand it will negatively impact the 25,000 American workers who make and recycle lead batteries.
The tax at issue was introduced as part of H.R.3684, the Infrastructure Investment and Jobs Act, which was signed into law last November as part of a broader reinstatement of the so-called “Superfund Excise Taxes”, which were charged during the 1980s and early 1990s.
Because the tax applies only to the raw materials used to manufacture batteries it puts US domestic manufacturers of those batteries at an immediate competitive disadvantage to imports.
“In our view, this tax seems to be the exact opposite of what the infrastructure and other Biden initiatives are for: to strengthen American manufacturing,” says Miksad. “Taxing only US manufacturing companies puts them at an unfair disadvantage to foreign competitors. Removal of the tax would free up monies for battery manufacturers to reinvest in their operations whether for expansion, R&D, or maintaining affordable batteries for US consumers.
“We are supporting the work of the bill’s author, Representative Dan Meuser, to identify additional co-signers for the bill so that it can move forward in Congress.”
In Europe, there is speculation that lead will be placed on the REACH Authorisation list— effectively banning its use in batteries. Miksad believes this poses a significant risk to the lead industry, and the BCI is supporting the efforts of its partner associations in Europe to provide a robust response to these efforts.
But before the industry panics, it is perhaps useful to look at the results of the DTSC evaluation of lead batteries, which started with a similar premise.
“As the California government conducted its review, and after exhaustively studying the situation and the alternatives, DTSC came to recognise what industry has long known— these batteries are indispensable, there are no acceptable substitutions, and they pose little to no risk to consumers and the public when handled properly,” says Miksad.
“We are hopeful that the European regulators will recognise the same facts.”