EPA Clarifies Requirements for Management of End-of-Life Lithium-Ion Batteries under RCRA

On May 24, 2023, the U.S. Environmental Protection Agency’s Office of Resource Conservation and Recovery issued a memorandum clarifying how federal hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA) apply to the collection, recycling and storage of lithium-ion batteries. Although this memorandum does not impose new regulatory requirements, it provides additional guidance for companies that generate, handle, store and recycle end-of-life lithium-ion batteries. Key principles of the EPA’s guidance are described below.

Management of End-of-Life Lithium-Ion Batteries as Universal Waste
The EPA guidance provides that, absent the applicability of the household waste exemption, most lithium-ion batteries qualify as RCRA hazardous wastes due to their “ignitability” and “reactivity” characteristics. For example, EV batteries removed at auto dealerships, auto shops, scrap yards and similar facilities would be subject to RCRA hazardous waste regulations and are not considered household hazardous waste.

However, to avoid imposing potentially onerous RCRA requirements on such businesses, the guidance further clarifies that most lithium-ion batteries may be managed under the RCRA’s streamlined hazardous waste management standards for universal waste until they reach a “destination facility” for disposal, at which point the full suite of hazardous waste requirements would apply. Universal waste classification grants relief to hazardous waste generators, transporters and disposal and recycling facilities with respect to RCRA requirements relating to, among other things, employee training and container labeling, accumulation of waste on-site before shipment for disposal or recycling, and hazardous waste manifesting requirements. Additionally, under the universal waste regulations, handlers of lithium-ion batteries can perform certain limited activities—including removing batteries from products, disassembling battery packs, sorting, and mixing batteries, or discharging batteries to remove the electric charge—without triggering the full RCRA requirements, as long as batteries or cell casings remain intact. Damaged batteries, however, may not qualify as universal waste. For example, the EPA notes that the universal waste standards will not apply if there has been a “breach” in a battery’s individual cell casing. In such cases, the waste batteries will need to be managed under the full RCRA requirements.

The EPA recommends that entities that store end-of-life lithium-ion batteries take additional precautions above and beyond the universal waste standards to avoid the risk of fire, including implementing employee safety training, isolating the battery terminals, storage of batteries in climate-controlled spaces, and storage of batteries separately from flammable materials. As briefly noted below, RCRA-authorized states may impose additional requirement pertaining to end-of-life management of lithium and other batteries. As briefly noted below, RCRA-authorized states may impose additional requirement pertaining to end-of-life management of lithium and other batteries.

Promoting Lithium-Ion Battery Recycling and Reuse
The EPA guidance encourages the recycling and reuse of lithium-ion batteries “wherever possible” to conserve critical rare earth minerals. In this connection, the guidance provides that, under the RCRA’s “use/reuse exemption,” lithium-ion batteries are not considered wastes if they are removed from one device and legitimately reused in a similar device, repurposed for use in a different type of device, or when they are sent for evaluation for reuse, repurposing or repair, provided there is a “reasonable expectation” for such reuse. For example, batteries sent to reverse-logistics providers for reuse, repurposing or repair would not be considered solid wastes subject to the RCRA until the handler determines that the batteries cannot continue to be used or reused and decides to discard them. From that point on, the batteries would need to be regulated as universal waste until they are sent to a destination facility. The guidance emphasizes that this determination may be made off-site, but there must be a “reasonable expectation” of reuse.

The guidance also clarifies that certain activities conducted at recycling facilities prior to the recycling process, including the removal of batteries from devices, sorting, battery discharge, disassembly of batteries into cells or modules prior to recycling, and the shredding of batteries to produce “black mass” (a filter cake-like material made up of the shredded cathodes and anodes of the batteries), do not require a RCRA hazardous waste permit because they are considered part of the exempt recycling process. 

However, a recycling facility will lose the benefits of this exemption if the entity stores the batteries to be recycled indefinitely, or for too long, at which point the facility must obtain a RCRA hazardous waste storage permit. The guidance does not specify how long such a facility may hold waste batteries prior to recycling before the permitting requirement is triggered, but it notes that “the appropriate EPA Regional office or authorized State regulatory agency may specify such a holding time on a site-specific basis, defining a time at which storage begins.” Companies involved in the handling or recycling of end-of-life batteries should therefore consult the applicable state statutes and regulations to determine the length of the “holding period” (if any) after which permitting requirements are triggered.

The Future of Lithium-Ion Battery Regulation
As demand for lithium-ion batteries continues to grow, and as many of the minerals required to manufacture lithium-ion batteries face supply-chain complexities and shortages, state and federal regulators will continue to focus on end-of-life battery reuse and recycling programs. In particular, the shortage of critical minerals contained in lithium-ion batteries, such as aluminum, lithium, nickel, cobalt, manganese and graphite, further highlights the increasing importance of and demand for battery recycling and reuse policies.

Companies that handle or recycle end-of-life lithium-ion batteries can therefore expect greater regulatory attention to these issues in the future. As the EPA guidance notes, the Bipartisan infrastructure Law of 2021 directed the EPA to develop “best practices” and labeling guidelines for the collection of batteries for recycling, and in July 2022, the EPA released a “Request for Information” regarding the agency’s operations for battery collection best practices and labeling guidelines to promote battery recycling. As the EPA explains, there is a wide variety of lithium battery chemistries and designs which may impact whether a given battery exhibits hazardous characteristics. Furthermore, as battery design continues to evolve, battery handlers and recyclers will need to assess whether new battery designs result in a “hazardous waste” classification under federal law.

State laws and regulations will also play an important role in the regulation of end-of-life lithium-ion batteries. The EPA notes that most states have federally delegated authority to implement their own RCRA programs and can impose more stringent requirements than those under the federal regulations. Therefore, companies that manage or recycle end-of-life lithium-ion batteries should carefully assess both state and federal requirements related to battery disposal and recycling in the jurisdictions in which they operate or expand.