U.S. EPA Issues Memorandum on How Hazardous Waste Regulations Apply to Lithium-Ion Batteries

After many years of anticipating the United States Environmental Protection Agency (U.S. EPA) guidance on the management of end-of-life lithium-ion batteries, the wait is finally over for the battery industry. On May 24, 2023, the U.S. EPA released a guidance memorandum that clarifies the agency’s position that most lithium-ion batteries are likely hazardous waste under the Resource Conservation and Recovery Act (RCRA) regulations at end-of-life and that they can be managed under the streamlined hazardous waste management standards for universal waste until they reach a destination facility for recycling or discard¹.

U.S. EPA states in the memorandum that most lithium-ion batteries on the market today are likely to be a hazardous waste² when they are disposed of due to their ignitability (D001) and reactivity (D003) characteristics and explains that “fires at the end-of-life are common and mismanagement and damage to batteries make them more likely.” The guidance states that most lithium-ion batteries can be managed as a universal waste until they reach their destination facility, at which point they must be managed as a fully regulated hazardous waste. US EPA emphasizes that lithium-ion batteries at end-of-life should only be sent to facilities that are either hazardous waste recyclers with no storage before recycling or RCRA-permitted treatment, storage, and disposal facilities.

How does this memo affect Lithium-Ion Battery Waste Generators?

Once a generator concludes that a lithium-ion battery is a universal waste, the generator will need to appropriately manage it as universal waste. The requirements for managing universal waste are found in 40 C.F.R. Part 273 and include employee training, labeling of 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.

U.S. 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.

The memorandum goes on to explain 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 CFR 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.

How does this memo affect Recyclers of Lithium-Ion Batteries?

“Recycling” under the definition of the solid waste transfer-based recycling exclusion (40 CFR 261.4(a)(24)&(25)) requires that (1) both the state of generation and state of recycling have adopted the federal exclusion in state law, (2) all conditions for the exclusion are met, including financial assurance or RCRA storage permit for the recycler and reasonable efforts to audit the recycler by the generator, and (3) transportation through states that have not adopted the exclusion comply with such states’ hazardous waste regulations. U.S. EPA clarifies that battery recycling facilities generally do not need to obtain RCRA permits in order to conduct recycling operations. However, U.S. EPA cautions that recyclers may not “store” batteries prior to recycling them without obtaining a RCRA permit. U.S. 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. U.S. 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 CFR Part 261.6.

U.S. EPA recommends that in addition to following the prescribed standards for storage and transportation for lithium-ion batteries, managers of end-of-life batteries should take the following precautions to protect against the chance of thermal runaway and fire:

• Conduct safety training for all employees handling batteries;
• Isolate the terminals of the batteries with non-conductive tape, plastic bags, or other separation techniques, keeping the label legible;
• Prevent damage to batteries;
• Store batteries in climate-controlled spaces with good ventilation;
• Store batteries in a separate building away from flammable materials and occupied spaces when possible;
• Store batteries that have been identified as damaged, defective, or recalled (DDR) separately from non-DDR batteries in appropriate containers;
• Conduct frequent visual and thermal inspections of the batteries;
• Have ongoing communications with local fire marshals and first responders about materials and processes happening onsite; and
• Maintain a plan for how to respond and evacuate in case of emergency.

The memorandum explains that most states have delegated authority to implement their own RCRA programs and can impose more stringent requirements. Generators, recyclers, and others who manage lithium-ion batteries at the end of their lives should carefully evaluate potential state requirements and take proactive steps to ensure their employees and operating procedures are trained and updated appropriately to ensure they remain in compliance.

If you have questions about any part of this memorandum and how it may affect compliance at your facility, or if you would like to inquire about training or setting up a battery management program at your facility, please reach out to me at mliebert@all4inc.com. ALL4 is monitoring all regulatory updates in this ever-evolving industry, and we are here to answer your questions and assist your facility with the safe and compliant handling and transport of lithium-ion batteries.

¹ The universal waste standards in 40 CFR Part 273 are for certain hazardous wastes that are generated by a wide variety of establishments and are meant to streamline the collection of these hazardous wastes for proper management at a hazardous waste recycler or a permitted treatment, storage, or disposal facility. Both rechargeable lithium-ion and single use lithium primary batteries can be managed as universal waste. Universal waste regulations do not require a hazardous waste shipment manifest but require that the waste be sent to a permitted hazardous waste disposal facility or a hazardous waste recycler.

² Waste generators have an obligation to evaluate whether their waste is hazardous under RCRA. Per this guidance, generators should expect to conclude that any lithium-ion batteries they discard will qualify as universal waste. 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.