On May 24, 2023, EPA released a guidance memorandum addressing the hazardous waste status of lithium ion batteries under the Resource Conservation and Recovery Act (“RCRA”).  EPA released the guidance to “both remove uncertainties for the states and industry about the regulatory status of these materials,” and to ensure that lithium ion batteries are properly handled when they are recycled.

In the guidance, EPA concludes that lithium ion batteries generally qualify as hazardous waste under RCRA: “most lithium-ion batteries on the market today are likely to be hazardous waste when they are disposed of due to the ignitability (D001) and reactivity (D003) characteristics.”  EPA also explained that, while qualifying as hazardous waste, lithium ion batteries can be managed as “universal waste” under 40 C.F.R. Part 273, which imposes a more “streamlined” set of requirements than the standard set of hazardous waste requirements. These determinations will have a significant impact on entities who dispose of lithium ion batteries, as well as entities involved in battery end-of-life management activities, including recycling.

Waste Generators.  While waste generators always have an obligation to evaluate whether their waste is hazardous under RCRA, in light of this guidance generators should expect to conclude that any lithium ion batteries they discard will qualify as hazardous waste.  Indeed, EPA “recommends that all lithium batteries be managed” as universal waste.  Thus, if a generator decides not to handle a discarded lithium ion battery as a universal waste, it should have a sound technical basis for concluding that the battery does not meet the ignitability or reactivity criteria.

Once a generator concludes that a lithium ion battery is a universal waste, the generator will need to appropriately manage it as universal waste.  There are a number of applicable requirements, located in 40 C.F.R. Part 273, including for employee training, labeling containers, limits on how long such waste may be accumulated at a site before being shipped for disposal or recycling, and requirements relating to shipping (including Pipeline and Hazardous Materials Safety Administration shipping requirements).  Entities that accumulate more than 5,000 kilograms of universal waste at any time are subject to more stringent requirements.

EPA also notes that the determination that a battery is a waste, rather than a product that might be reused, can be made off site, so long as there is a “a reasonable expectation of reuse.”  For example, intact and functional batteries provided to an electronic waste reverse logistics provider, who would then evaluate whether the batteries can be reused or instead must be recycled, could potentially not qualify as a waste until the logistics provider makes that determination, so long as there was a reasonable expectation that the battery might be reused when provided to the logistics provider. 

Finally, EPA also notes that “international shipments of lithium batteries managed as universal waste must also comply with RCRA requirements for export and import of universal waste.”  Those requirements, located at 40 C.F.R. Part 272 Subpart H, generally require prior notification and consent by the relevant countries before wastes can be imported or exported, as well as other requirements.  Accordingly, entities shipping used lithium ion batteries internationally should pay careful attention to these requirements.

Recyclers.  EPA’s guidance clarifies that battery recycling facilities generally do not need to obtain RCRA permits in order to conduct recycling operations.  However, EPA cautions that recyclers may not “store” batteries prior to recycling them without obtaining a RCRA permit.  EPA declines to specify a permissible “holding time,” which would not be deemed storage, prior to recycling commencing and instead leaves that determination to the regions or the states.  EPA also explains that certain RCRA air emission requirements may apply to such operations, and that such operations must comply with the general recycling requirements at 40 C.F.R. § 261.6.

As EPA notes, most states have delegated authority to implement their own RCRA programs, and can impose more stringent requirements.  Accordingly, generators, recyclers, and others who manage lithium ion batteries at the end of their lives should carefully evaluate potential state requirements.  Given the increased focus on the recycling of lithium ion batteries, EPA and the states are likely to increase their compliance and enforcements efforts in this area, and so companies should take appropriate steps to ensure they remain in compliance.

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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.