As lithium-based batteries become more prevalent in everything from electric vehicles (EVs) to industrial-scale batteries, as well as e-scooters and personal electronics, more questions arise regarding how to properly manage and dispose or recycle them at the end of their lives. On May 24, the U.S. Environmental Protection Agency (EPA) issued a memorandum titled “Lithium Battery Recycling Regulatory Status and Frequently Asked Questions,” clarifying how the EPA’s current hazardous waste regulations, under the Resource Conservation and Recovery Act (RCRA), apply to lithium batteries, and describing the handling requirements imposed on companies generating the waste batteries and recycling facilities ultimately receiving the waste batteries.
Among other things, the FAQ memo: clarifies that most end-of-life lithium batteries are hazardous wastes that can be managed under RCRA’s streamlined universal waste requirements for the facility generating the waste batteries; demonstrates the EPA’s commitment to recycling and legitimate reuse of lithium-ion batteries; and encourages other best practices for end-of-life management of lithium-ion batteries to protect against fires, among other things.
Solid Waste and Hazardous Waste. With respect to applicable end-of-life RCRA requirements, an initial question is when do lithium-ion batteries become solid waste? In short, a battery ultimately becomes a solid waste “when a handler determines that it cannot continue to be used or reused and makes the decision to discard it.” At that point, the generator of the waste batteries bears the responsibility for determining whether the batteries are hazardous waste that must be managed in accordance with RCRA’s hazardous waste regulations, In the FAQ memo, the EPA further explains that a battery removed from one device and “legitimately reused” in a similar device or repurposed for another application is not a solid waste, pursuant to the use/reuse exemption in 40 C.F.R. 261.2(e)(1)(ii). Additionally, the EPA states that “repairing electronics before resale is not considered reclamation, and such repair and replacement activities do not constitute waste management.” While battery designs, components, and chemistries can vary tremendously, the EPA notes that most solid waste lithium-ion batteries are likely to be characteristically hazardous for ignitability and reactivity.
Universal Waste. Since 1995 — long before lithium-ion batteries were a common technology — the EPA has allowed hazardous waste batteries to be managed under its universal waste regulations (40 C.F.R. Part 273), which apply to specific types of hazardous waste (such as batteries, aerosol cans, recalled pesticides, and mercury-containing equipment) from various commercial settings. In its FAQ memo, the EPA made clear that both rechargeable lithium-ion and single-use lithium batteries may be managed as universal waste batteries. This provides generators and handlers of waste batteries with increased flexibility, as the universal waste regulations provide for more streamlined requirements, such as related to storage and management. Universal waste handlers are not required to ship waste using hazardous waste manifests, but they are required to send universal waste only to permitted hazardous waste recyclers or hazardous waste disposal facilities as the final destination. Once hazardous waste batteries reach their final destination, they can no longer be considered universal waste, and are subject to the ordinary RCRA hazardous waste regulations.
Additionally, the FAQ memo distinguishes between management of “broken or damaged hazardous waste batteries” from end-of-life batteries. The EPA’s FAQ memo states that “[a] handler of universal waste may only manage broken or damaged hazardous waste batteries as universal wastes if the breakage or damage does not constitute a breach in an individual cell casing.”
Importantly, universal waste handlers are prohibited from recycling end-of-life batteries (e.g., by shredding batteries) on their own. Below, we include a brief discussion of RCRA requirements applicable to recycling facilities.
Recycling; Management at the Recycling Facility. The EPA’s FAQ memo encourages the recycling of lithium batteries “wherever possible,” to conserve critical minerals. One of the more common techniques used to process lithium-ion batteries for recycling is shredding. Depending on the size of the shredding equipment, either all or parts of a battery can be shredded, creating several waste streams, including plastics, electrolytes, separators, metals (mostly copper, aluminum, and steel), and “black mass” — a common industry term for the cake-like material made up of shredded cathodes and anodes.
The FAQ memo notes that “universal waste handlers are prohibited from recycling their universal wastes because recycling is not allowable treatment by universal waste handlers.” As such, any battery recycler that shreds batteries to produce black mass cannot be a universal waste handler and must instead comply with RCRA hazardous waste regulations. Although battery recycling facilities are subject to full RCRA hazardous waste regulations, the EPA’s FAQ memo explains that “[r]emoval of hazardous waste batteries from devices, sorting, battery discharge, and disassembly of batteries into cells or modules prior to recycling,” as well as shredding batteries to produce “black mass” and to separate other materials for recycling, do not require a RCRA hazardous waste treatment permit; these activities would be part of the exempt recycling process under 40 C.F.R. 261.6(c)(1). But if a battery recycler stores hazardous waste — including, for example, hazardous waste batteries and/or black mass that also exhibits hazardous waste characteristics — prior to recycling, the recycler must obtain a RCRA Part B permit. The storage would disqualify the recycler for the permitting exemption. It is not entirely clear what counts as “storage.” The EPA’s FAQ memo does not clarify a certain “holding time” that may constitute as “storage.” The exact holding time will likely vary from jurisdiction to jurisdiction and even from site to site.
Takeaway and What’s to Come. Lithium-ion batteries that are at their end-of-life are likely hazardous waste, but they can be managed pursuant to RCRA’s more streamlined universal waste regulations. The company generating this waste stream must either send such batteries to a permitted treatment, storage, and disposal facility or recycling facility. Upon arrival at the final disposal facility or battery recycler, the batteries must be managed pursuant to RCRA hazardous waste regulations; they are no longer considered universal waste. For any lithium-ion batteries that are broken or damaged and also a hazardous waste, such batteries must be managed as hazardous waste; they cannot be managed under RCRA’s universal waste regulations.
Looking to the future, the demand for lithium-ion batteries is projected to grow significantly. 140 million EVs are predicted to be on the road worldwide by 2030. By that time, 11 million metric tons of lithium-ion batteries are expected to reach the end of their service lives and will need to be either discarded or recycled. Currently, approximately only five percent of lithium-ion batteries are being recycled or reused. At the same time, many of the raw materials that are necessary to manufacture lithium-ion batteries — such as lithium, nickel, and cobalt — are in short supply in the U.S. The EV industry continues to face mounting supply chain issues that have led to higher costs and increased material shortages. In particular, trade restrictions with China and Russia, where most of these raw materials originate, and the war in Ukraine, which has significantly driven up prices for nickel, an essential material for EV battery manufacturers.
As demand for raw materials increases, battery recycling or reuse will become critical. Legislators and regulators understand that the landscape is rapidly changing and are starting to respond with programs to encourage domestic production of batteries and raw materials. Additionally, they are streamlining some environmental regulatory review processes and providing guidance on waste management practices. For example:
- The Inflation Reduction Act (IRA), passed in August 2022, included provisions extending the availability of EV tax credits to individuals and businesses to further encourage domestic production of EV batteries. The IRA also requires that the minerals for EV batteries be mined in the U.S. or imported from U.S. trading partners (which excludes China and Russia where most of these raw materials originate).
- Under the Toxic Substances Control Act’s (TSCA) New Chemicals Program, the EPA is required to evaluate new substances for potential risks to human health and the environment before those substances enter the marketplace. In October 2022, the EPA announced its plan to implement a streamlined review process under the New Chemical Program for certain new chemicals with applications in batteries and EVs.
- As noted in the EPA’s FAQ memo, in the Bipartisan Infrastructure Law, Congress required the EPA to develop battery recycling best practices and guidelines for battery labeling.
- The FAQ memo also notes that due to the large number of fires associated with lithium batteries, the EPA is actively reevaluating current universal waste battery management standards.
Troutman Pepper is a leader on environmental law, and our team advises clients on issues related to EV batteries, battery storage, and other battery projects, including on issues related to environmental compliance under RCRA. Please contact Karlie Webb, Todd Fracassi, or Chris Bergin with questions on these matters.
 The EPA states in the very first paragraph of the FAQ memo that “EPA encourages “[t]he growth of the circulate economy for lithium battery materials is vital as the focus turns to how to eventually manage lithium-ion batteries at the end of their lives” and that “[r]ecycling lithium-ion batteries returns valuable critical minerals to the economy, both conserving resources and reducing the overall energy used need to produce new ones.”
 Global EV Outlook 2021: Prospects for Electric Vehicle Deployment, International Energy Agency, available at: https://iea.blob.core.windows.net/assets/ed5f4484-f556-4110-8c5c-4ede8bcba637/GlobalEVOutlook2021.pdf.
 Mitch Jacoby, It’s Time To Get Serious About Recycling Lithium-Ion Batteries, CHEM. & ENG’G NEWS (July 14, 2019), https://cen.acs.org/materials/energy-storage/time-serious-recycling-lithium/97/i28.