Seyfarth Synopsis: USEPA has published a new Memo on RCRA Applicability to End-of-Life Lithium Batteries.

In May 2023 the U.S. Environmental Protection Agency (“USEPA”) published  a Memorandum and Q&A on the applicability of RCRA to end-of-life Lithium Ion and Lithium Metal Batteries. The guidance, sent to the USEPA Regional Division Directors, clarifies how the RCRA rules for universal waste and recycling apply to both intact and damaged batteries, and strongly encourages battery recycling, if the batteries are undamaged.

USEPA states that “most lithium-ion batteries are likely hazardous waste at end of life”  based on the characteristics of ignitability and reactivity (D001 and D003).  Nevertheless USEPA has taken the position that like other batteries, lithium ion and lithium metal batteries can be managed under the Universal Waste Rules until they reach the recycling or disposal facility.  USEPA advises however that while both intact rechargeable and single use lithium batteries can be managed as Universal Waste, lithium batteries that are Damaged, Defective or Recalled (“DDR”) may not be managed as Universal Waste.  The Agency also clarifies that while the Universal Waste Rules do not require manifesting of intact (versus DDR) batteries by generators, they must nevertheless be sent to a RCRA-permitted Treatment Storage and Disposal Facility (“TSDF”) or hazardous waste recycler as a final destination.

Much of the USEPA memo is in the form of Q&A,  and through those Q&As, USEPA describes how recycling rules apply to lithium batteries as they progress through the recycling process (collection, identification sorting, disassembly, and “shredding”).  The memo includes a description of the various wastestreams generated during the shredding process, and discusses in particular its position that “black mass” generated as part of shredding must be tested to determine if it is a characteristic hazardous waste, or must be presumed to be hazardous waste.

Because lithium batteries vary significantly in the size, level of charge remaining in the battery, condition of the battery,  and the amount of materials that are recyclable,  USEPA suggests very strongly that facilities either presume intact lithium batteries to be hazardous waste (and manage them under the Universal Waste Rules of 40 CFR 273 provided they are not DDR) or test them prior to recycling or disposal. As the use of lithium-ion batteries and lithium-metal batteries continues to increase at a significant rate, and there is more clarity on the regulated status of batteries at end-of-life, companies should be diligent in their characterization, packaging, management and recycling or disposal of such batteries; please let your attorney in the Seyfarth Workplace Safety and Environmental Practice know if you need assistance working through the recycling and waste management process.