Earlier this summer, citing the rapid increase in electric vehicles powered by lithium-ion batteries, the U.S. Environmental Protection Agency (EPA) issued a non-binding Memorandum on Lithium Battery Recycling Regulatory Status and Frequently Asked Questions. While the Memorandum does not have the force of law, it serves to clarify EPA’s position on how hazardous waste regulations apply to lithium-ion batteries and provides recommendations to industry on environmental management of lithium-ion batteries. In issuing this Memorandum, EPA indicated that it hopes to reduce uncertainty about the regulatory status of lithium-ion battery recycling and to encourage safe recycling that enhances resource conservation and reduces energy use.

Lithium is a critical component to the batteries that power electric vehicles and other devices like e-scooters and e-bikes. As lithium-ion battery use becomes more common, proper disposal and recycling of lithium batteries at the end of their life cycle is top of mind for many stakeholders in the life cycle of such batteries. The increase in lithium-ion battery use prompted EPA to specifically address how hazardous waste disposal regulations, universal waste handling requirements, and other provisions of the Resource Conservation and Recovery Act (RCRA) apply to lithium-ion battery end of life, including disposal and recycling.

Universal Waste Designation

EPA considers lithium-ion batteries at the end of their life to be hazardous waste under RCRA because lithium-ion batteries typically exhibit the ignitability and reactivity characteristics of hazardous waste; accordingly, EPA recommends that lithium-ion batteries be managed as universal waste. The universal waste classification applies to certain types of generators and handlers of hazardous waste and provides streamlined requirements for handling specific types of common hazardous waste. The Memorandum states that EPA believes the streamlined universal waste requirements are appropriate for lithium-ion batteries because the wide variability of battery chemistries makes it difficult to determine the specific hazardous waste characteristics for any given battery; allowing all batteries to be recycled under the universal waste definition reduces uncertainty about the applicable hazardous waste regulations for recycling lithium-ion batteries. The universal waste classification for lithium-ion batteries means that certain generators and handlers can transport lithium-ion batteries without a hazardous waste shipping manifest but must send the lithium-ion batteries to a permitted facility. The universal waste regulations also provide additional storage, labeling and handling requirements for batteries. These requirements vary depending on the volume of universal waste stored on-site by the waste handlers. Further, universal waste requirements only apply to handlers of universal waste and prohibit handlers from recycling their universal waste. Lithium-ion batteries that reach a destination facility for recycling will thereafter not be considered universal waste and the receiving facilities must then manage lithium-ion batteries in compliance with hazardous waste management regulations for destination facilities. Universal waste regulations can also vary from state to state, complicating requirements for interstate transport.

Exceptions to Hazardous and Universal Waste Designation

Lithium-ion batteries can also fall under several exceptions to the hazardous waste designation under RCRA that relax the handling requirements for lithium-ion batteries for certain entities. These exceptions include the household hazardous waste exception, the use/reuse exception, and the solid waste transfer-based exclusion. Lithium-ion batteries used by households are not subject to hazardous waste disposal regulations under RCRA. This household hazardous waste exception applies only to waste generated through normal household activities such as routine house and yard maintenance. Electric vehicle batteries that are removed at a dealership, auto shop, scrap yard, or similar facility are not household waste and must be handled as universal waste. As EV adoption grows, consumers and automakers should remain mindful of these requirements when disposing of lithium-ion batteries, and a number of states are considering take-back programs and other recycling programs that would require vehicle manufacturers and/or battery manufacturers to assist customers with properly disposing of lithium-ion batteries from vehicles. For non-vehicle lithium-ion batteries, EPA recommends that households exercise care while disposing of lithium batteries and take actions to separate lithium-ion batteries from municipal waste streams, including by dropping batteries off at local battery collection facilities. Household hazardous waste is also regulated at a state or local level, so differing state and local requirements may apply.

Reused lithium-ion batteries are also exempt from the definition of hazardous waste under RCRA’s use/reuse exemption if certain criteria are met. Lithium-ion battery recyclers intending to qualify for this exception must satisfy the legitimate use/reuse requirements established in RCRA regulations. Once a lithium-ion battery is refined and suitable for reuse, it is no longer a waste. On the other hand, any batteries that a handler determines are not reusable are to be considered solid waste that must be managed under the universal or hazardous waste requirements. In addition, lithium-ion batteries are exempt from the definition of hazardous waste if they are recycled under the definition of solid waste transfer-based exclusion in 40 C.F.R. 261.4(a)(24) and/or 40 C.F.R. 261.4(a)(25). This exception only applies if both the state where the batteries are generated and the state where the batteries are being recycled have adopted this exclusion and the applicable parties comply with the conditions of the exclusions described by the regulations.

Hazardous Waste Designation

While lithium-ion batteries will often qualify for universal waste classification under RCRA, there are also several circumstances where lithium-ion batteries will be subject to the full suite of hazardous waste requirements under RCRA. One such circumstance is when lithium-ion batteries are recycled by shredding lithium batteries into a substance called “black mass.” When batteries are shredded into black mass, they are no longer considered a universal waste and must be handled following the regulations for hazardous waste. Damaged and defective batteries that have breached cell casings also cannot be managed as universal waste. Because generators are responsible for determining whether the waste is hazardous, testing is likely required to determine whether black mass or other recycled lithium-ion products meet the definition of hazardous waste.

Best Practices and Anticipated Future Actions

EPA’s memorandum also provides several best practices for storing batteries, including storing batteries in climate-controlled spaces and providing safety training for employees to manage lithium batteries, as well as fire and emergency planning.

Foley continues to closely monitor regulatory developments at both the state and federal levels related to EV adoption and electrified mobility. Also, in 2021, Congress passed the Infrastructure Investment and Jobs Act which requires EPA to develop battery recycling best practices and battery labeling guidelines allocating $10 million and $15 million respectively to the EPA to complete these tasks by September 30, 2026. This indicates that additional related initiatives and requirements will be forthcoming.

Special thanks to Ned Willig, a 2023 summer associate, for his contributions to this article.