Lithium-ion batteries hold great promise for reducing transportation-related combustion emissions, but they also carry risk. The federal government routinely warns airline passengers about the inherent fire risk of lithium-ion batteries, but now we are being warned about the risks of recycling them.

On May 24, 2023, the U.S. Environmental Protection Agency issued a guidance memo clarifying which recycling activities for lithium-ion batteries trigger modest regulation as a “universal waste” and which ones trigger much heavier regulation as “hazardous waste.”

EPA issued the guidance to encourage recycling, but the agency determined that most lithium-ion batteries can constitute hazardous waste due to their flammability and reactivity. Thus, companies that handle lithium-ion batteries should understand the applicable regulatory requirements, especially if they hope to avoid the burdensome regulations that apply to facilities that routinely treat, store and dispose of hazardous waste.

Here are some important regulatory requirements to note from the guidance memo:

• Spent and unused batteries become waste on the date of discard, which is a critical event for determining a regulated entity’s responsibilities.
• Damaged batteries may qualify as universal waste, so long as the cells remain intact.
• A reused battery may avoid a waste designation by meeting the first three of EPA’s legitimacy criteria in 40 CFR § 260.43, but one must also “consider” the fourth criterion:
  1. It provides useful contribution to the product and can operate safely in another device.
  2. It is a valuable product that substitutes for buying a new battery.
  3. It is managed as a valuable commodity, using safety and tracking procedures similar to those for a new battery.
  4. It does not contain hazardous constituents or exhibit hazardous characteristics that an analogous new product does not.
• Universal waste handlers can deconstruct batteries to a cell level, mix batteries in one container, sort batteries by type or chemistry, remove batteries from products and other similar activities, but they may not breach or open battery cells.
• Pre-recycling treatments, such as shredding battery cells, trigger hazardous waste regulation.

Despite these statements, EPA left many related issues unaddressed. Further, individual states may have their own additional rules and guidance impacting the recycling, reuse and management of lithium-ion batteries, as both universal and hazardous waste. Thus, despite the laudable intent of EPA’s guidance, the regulated community still has much to consider when determining how it can appropriately handle lithium-ion batteries without running afoul of the underlying waste management regulations.