EPA Moving Forward Soon With Rulemaking To Modify And Expand The RCRA Universal Waste Rule For Lithium Batteries And Solar Panels

The U.S. Environmental Protection Agency (EPA) recently indicated that it will proceed with a rulemaking first announced by the Biden administration to improve the recycling and management of wastes from the generation and storage of renewable energy by (a) modifying the existing "universal waste" requirements under the Resource Conservation and Recovery Act (RCRA) for lithium batteries and (b) expanding the universal waste rule to cover waste photovoltaic (PV) solar panels. According to the latest Regulatory Agenda, EPA expects to issue a proposed rule in February 2026, with a final rule in August 2027. Due to the current government shutdown, the schedule may face some delays. In any event, there may be a small window of opportunity to try influencing the upcoming proposal.

Based on currently available information (which is limited), the expansion of the universal waste rule to include PV solar panels seems unlikely to raise significant issues, and it should significantly advance the goal of facilitating recycling of the units. However, the opposite may be true for the modification of the universal waste rules for lithium batteries. As discussed below, this aspect of the proposal is likely to raise a host of novel and perplexing issues, and certain aspects of the proposal may actually work at cross-purposes to the intended goal. Indeed, it is questionable whether EPA even has the legal authority to proceed with this portion of the proposed rule.

Background

EPA first issued the universal waste rule in 1995 to streamline the regulatory requirements for the collection and transport of certain ubiquitous hazardous wastes, and thereby facilitate environmentally sound management (including recycling) of such wastes. See 60 Fed. Reg. 25,492 (May 11, 1995). The facilities that ultimately recycle, treat, or dispose of the universal wastes remain subject to the otherwise applicable hazardous waste regulatory requirements.

The universal waste rule initially covered batteries, mercury thermostats, and certain pesticide wastes, but has been expanded over the years to encompass lamps, aerosol cans, and other mercury-containing equipment. Authorized states may also add other categories of wastes to their universal waste rules, and several have done so for solar panels, paints, electronics, antifreeze, and other wastes.

In the fall of 2023, the Biden administration announced its intent to modify and expand the universal waste rule for lithium batteries and PV solar panels, in response to a study performed by the Agency on lithium-ion battery fires during waste management, as well as a petition filed in 2021 by the Edison Electric Institute and other trade associations asking for PV solar panels to be classified and regulated as universal wastes. Beveridge & Diamond previously published a detailed discussion of the 2023 EPA announcement. See "EPA Announces Plan to Modify and Expand the RCRA Universal Waste Rule for Lithium Batteries and Solar Panels" (November 3, 2023).

The Trump administration has not formally announced its plan to move forward with this rulemaking, but it included the proposed rule in the latest Regulatory Agenda and updated its webpage regarding the rule on August 6, 2025. While information about the upcoming proposal is limited, some hints about the possible direction of the Agency have emerged in recent months.

Proposal to Modify Universal Waste Requirements for Lithium Batteries

The universal waste rule has covered all batteries, including lithium batteries, since its inception in 1995. However, EPA's upcoming proposal would apparently carve out lithium batteries from the long-standing category of universal waste batteries and establish modified universal waste requirements for lithium batteries to address potential fire risks associated with such batteries.

Potential Legal Obstacles

It is questionable whether EPA has legal authority to proceed with its effort to revise the universal waste rule for lithium batteries. In 1996, Congress enacted the Rechargeable Battery Recycling Act (Battery Act), which, among other things, provided that EPA's 1995 universal waste rule preempted state law with respect to "collection, storage, or transportation of used rechargeable batteries" – a category that includes lithium-ion batteries. See Battery Act § 104(a), 42 U.S.C. § 14323(a). While this language does not explicitly prohibit EPA itself from changing the universal waste rule, any such change would not automatically take effect in the 48 states with "authorized" RCRA programs that operate in lieu of the federal RCRA regulations. See, e.g., 64 Fed. Reg. 36,466, 36,482 (July 6, 1999) (stating that the universal waste rule for lamps was "applicable on the effective date only in those States that do not have final RCRA authorization"). Instead, in authorized states, the only way the new standards might take effect is if the states adopt them as a matter of state law. See id. (stating that the universal waste rule for lamps would "not take effect in an authorized State until the State adopted the federal requirements as State law").

However, if a state were to change its law in that manner, the change would likely be rendered null and void due to the preemption provision of the Battery Act. That provision is clear that "[t]he collection, storage, or transportation of used rechargeable batteries ... shall, notwithstanding any law of a State or political subdivision thereof ... be regulated under applicable provisions of the regulations promulgated by the Environmental Protection Agency at 60 Fed. Reg. 25492 (May 11, 1995), as effective on May 11, 1995." See Battery Act § 104(a), 42 U.S.C. § 14323(a) (emphasis added). The explicit reference to the 1995 rule as published on a specific page of the Federal Register in 1995 and as effective in 1995 – without any qualifying language like "... as may be amended" – arguably locks in the 1995 rule, regardless of any changes that EPA may make to that rule, at least within authorized states.

Indeed, the 1995 rule may be locked in even in the few non-authorized states (i.e., Alaska, Iowa, and certain U.S. territories). The operational language of the Battery Act provision above is that rechargeable batteries "shall" be regulated under the 1995 rule. Arguably, this language elevates the 1995 rule to the status of a statute that cannot be undone by EPA (without additional action by Congress).

In light of the above, EPA's planned rulemaking for lithium batteries may be an exercise in futility. The Battery Act provision, which is expressly limited to rechargeable batteries, would not prevent EPA from changing the universal waste requirements for non-rechargeable lithium batteries (i.e., lithium metal batteries). However, it is unclear whether EPA has the factual basis needed to apply more stringent standards to lithium metal batteries. The study that apparently is the main basis for the rulemaking was limited to lithium-ion batteries. See, EPA, "An Analysis of Lithium-ion Battery Fires in Waste Management and Recycling" (EPA Publication 530-R-21-002) (July 2021).

In late 2024, B&D asked a senior EPA official about the apparent legal obstacles during a conference in Washington, DC. The official simply responded, without elaboration, that the Agency had considered the issue but believes it has legal authority to proceed. It will be important to see how EPA attempts to justify its proposed changes to the universal waste rule for lithium batteries, especially given the Trump administration's emphasis on ensuring that regulations are based on "the best reading of the underlying statutory authority." See, e.g., Executive Order 14219 (February 19, 2025), 90 Fed. Reg. 10,583 (February 25, 2015), Section 2(a)(iii) (directing agency heads to identify "regulations that are based on anything other than the best reading of the underlying statutory authority" for potential rescission or modification).

Potential New Standards

EPA has not provided any details about the new universal waste standards it intends to propose for lithium batteries except that they will focus on addressing potential fire risks associated with the batteries. Nevertheless, certain requirements seem essential to any new standards. For example, to distinguish between lithium batteries (which would be subject to the new standards) and other batteries (which would remain subject to the existing universal waste standards for batteries), handlers of lithium batteries presumably will have to label the batteries (or containers thereof) as universal waste lithium batteries, and will have to notify EPA or the relevant state that they are handling such batteries. EPA may also need to address if/how handlers managing mixed battery types must determine whether the mix includes lithium batteries, segregate the lithium batteries, or handle the mix in accordance with the universal waste rules for lithium batteries.

EPA previously reached out to the Association of State and Territorial Solid Waste Management Officials (ASTSWMO) for early input on the Agency's rulemaking effort, pursuant to Executive Order 13132 on federalism. On August 5, 2024, the ASTSWMO Hazardous Waste Subcommittee and Lithium Battery Workgroup responded with numerous suggestions for new universal waste standards for lithium batteries, including the following:

• A lower Large Quantity Handler ("LQH") threshold for lithium batteries than the current 5,000 kg (11,000 lb) threshold that applies to the total quantity of universal wastes managed by the handler at any time.
• Financial assurance requirements for LQHs (as redefined) to ensure that sufficient funds will be available for cleanup and disposal in the event of a fire.
• Detailed requirements for storage/accumulation of lithium batteries by LQHs, such as container size limits, storage area design standards and capacity limits, siting requirements, ventilation and temperature control, separation between lithium battery storage containers and containers of other hazardous wastes (potentially including non-lithium batteries), fire barriers, and inspections.
• A reduction in the current universal waste accumulation time limit of 1 year for damaged, defective, or recalled (DDR) lithium batteries (even though such batteries do not even qualify as universal wastes if battery cell casings have been breached, as discussed further below).
• Detailed preparedness and prevention measures and emergency procedures for LQHs, including a contingency plan, emergency response coordinator, emergency equipment, and arrangements with local first responders.
• Expanded personnel training for handlers of lithium batteries, and for transporters (even though additional transporter requirements might undercut the ability of common carriers to transport universal waste lithium batteries).

EPA is by no means bound to accept these suggestions, and there may be good policy reasons (in addition to the legal reasons discussed above) why some or all of the suggested requirements would not be warranted or appropriate. For example, some of the requirements may already be adequately covered by local fire codes or may unnecessarily discourage battery recycling. Nevertheless, it seems possible, if not likely, that several of these requirements will end up in EPA's upcoming proposal.

Potential Effect on Broken or Damaged Batteries

EPA has long taken the position that broken or damaged batteries, including lithium batteries, can be managed as universal wastes only if there has been no breach in any individual cell casing. Accordingly, in the absence of a change in this Agency position, any modification to the universal waste rule for lithium batteries should not affect non-intact batteries (i.e., batteries in which one or more cell casings have been breached, such that they are not universal wastes). Indeed, the ASTSWMO Hazardous Waste Subcommittee and Lithium Battery Workgroup specifically asked EPA to underscore in its lithium battery rulemaking that batteries with breached cell casings must be managed as fully regulated hazardous wastes, rather than universal wastes.

Importantly, however, the net effect could be to control fire risks from intact batteries (under the universal waste rule) without controlling the potentially greater fire risks from non-intact batteries (under the full hazardous waste rules). To avoid such a counterintuitive result, EPA may seek to incorporate the new lithium battery standards not only into the universal waste rule, but also into the general hazardous waste rules (e.g., the rules for hazardous waste generators, to the extent that they generate lithium batteries with breached cell casings). The ASTSWMO groups mentioned above, in fact, suggested such an approach.

Potential Effect on Non-Waste Batteries

EPA's regulatory authority under Subtitle C of RCRA is clearly limited to "hazardous wastes," which are defined as a subset of "solid wastes." Consistent with this limitation, the existing RCRA universal waste rule makes clear that batteries (and other materials, such as lamps and aerosol cans) are not universal wastes unless they qualify as solid wastes. See 40 C.F.R. § 273.2(b)(2) (stating that the universal waste rules for batteries "do not apply to persons managing ... batteries ... that are not yet wastes"). Accordingly, one would not expect that any changes to the universal waste standards for lithium batteries would affect non-waste batteries. However, the ASTSWMO Hazardous Waste Subcommittee and Lithium Battery Workgroup have urged EPA to apply the new standards to two key categories of non-waste lithium batteries: (1) lithium batteries managed in accordance with one of the conditional exclusions for Hazardous Secondary Materials (HSMs) destined for reclamation, or (2) unused lithium batteries (e.g., unused off-specification, expired, or damaged batteries) managed under the regulatory exclusion for "commercial chemical products" (CCPs) that are destined for reclamation. See 40 C.F.R. §§ 261.4(a)(23)-(25) (HSM exclusions) and § 261.2(c)(3) (CCP exclusion).

The ASTSWMO groups' proposal to impose RCRA standards on non-waste batteries appears to be beyond EPA's legal authority. The groups may be envisioning that the new lithium battery standards could be adopted, not as requirements for non-wastes, but as new conditions for HSMs and CCPs to be excluded from the definition of waste. However, since the same standards would also be requirements for waste batteries, that approach would be a transparent attempt to circumvent the statutory prohibition on regulating non-wastes. Moreover, while fire controls might be warranted to address the risks associated with batteries that are wastes, it is questionable whether they can properly serve as criteria for determining whether batteries have been discarded and thus qualify as wastes in the first instance. Cf. American Petroleum Institute v EPA, 862 F.3d 50, 71 (D.C. Cir. 2017) (overturning one of the criteria in the 2015 HSM exclusions, stating that "the criterion assumes discard, i.e., behavior regulable under RCRA, and seeks to constrain its environmental impact, rather than testing for discard's existence" (emphasis in the original)).

Potential Effect on Second-Life Use of Lithium-Ion Batteries

The second-life use of lithium-ion batteries is somewhat of a gray area under the RCRA regulations. In the 1980s, EPA explicitly stated that used batteries are solid and potentially hazardous wastes if destined for "regeneration," including rewiring, replacing bad cells, or replacing electrolyte. See, e.g., 48 Fed. Reg. 14,472, 14,496 (April 4, 1983) ("Used batteries ... regenerated by replacing the drained electrolyte or replacing one or more bad cells" are solid wastes because they are spent materials destined for reclamation); see also 58 Fed. Reg. 8102, 8124 (February 11, 1993) (describing regeneration as including "replacement of electrolyte or rewiring").

While these "waste" batteries were exempted from regulation at the time, EPA removed the exemption in the 1995 universal waste rule. See 60 Fed. Reg. at 25,522 ("The Agency ... has removed the 40 CFR 261.6 exemption for used batteries that are to be regenerated"). In this way, generators and other handlers of (intact) batteries destined for regeneration were subjected to the universal waste handler requirements, including accumulation standards and time limits, labeling, personnel training, and notification and tracking for LQHs. Cf. id. at 25,535 (noting that "[t]he applicable [universal waste] requirements will be the same whether the battery is ... regenerable, or is sent on for reclamation"). However, EPA also added a provision to the universal waste rule stating that the regeneration activities could be performed at a handler facility, without triggering "destination facility" requirements such as permitting, "as long as the casing of each individual battery cell is not breached and remains intact and closed" (except as needed to remove – or presumably, replace – electrolyte). See 40 C.F.R. §§ 273.13(a)(2)(iv) and 273.33(a)(2)(iv).

EPA clouded the issue in its 2023 Lithium Battery Guidance, where it answered a question about whether lithium batteries are solid wastes when "reused, repurposed, or repaired or when ... sent for evaluation for reuse, repurposing, or repair." The Agency first stated that a battery that is "reused in another similar device or repurposed into another application is not a solid waste" (emphasis added) by operation of the use/reuse exclusion in 40 C.F.R. § 261.2(e)(1)(ii). However, that exclusion does not apply if a material is reclaimed – including regenerated – before reuse. Turning to the issue of batteries destined for repair, EPA stated that "repairing electronics before resale is not considered reclamation, and such repair and replacement activities do not constitute waste management" (emphasis added). This may have left the impression that batteries destined for repair are also not waste, but the response did not directly address such batteries or mention (much less reverse) the rules and guidance discussed above regarding battery regeneration. Finally, EPA stated that "[a] battery being evaluated for use or reuse becomes a solid waste when a handler determines that it cannot continue to be used or reused and makes the decision to discard it" (assuming there is a reasonable expectation of legitimate reuse prior to such a decision) (emphasis added). However, this language also did not address repair, thus arguably suggesting that batteries destined for repair remain wastes, as under the prior rules and guidance.

If, in fact, lithium batteries destined for regeneration/repair qualify as (hazardous) wastes, the new universal waste standards would apply to generators and other handlers of such batteries. As noted above, such standards might include detailed requirements for accumulation, financial assurance, contingency planning, employee training, and more. However, as long as there is a reasonable expectation that the batteries might be legitimately reused or repurposed without regeneration, the new (and old) universal waste requirements would likely not apply.

The new rule could have even more significant effects on the regeneration/repair of lithium batteries if EPA adopts the suggestion from the ASTSWMO Hazardous Waste Committee and Lithium Battery Workgroup to remove the ability of handlers to regenerate used batteries. In such an event, a facility engaged in battery regeneration would be reclassified as a universal waste destination facility, rather than a handler, and would generally be required to obtain a permit as a hazardous waste treatment, storage, or disposal facility (TSDF). Such a change would be a tremendous disincentive to the regeneration/repair of lithium batteries.

Potential Effect on Solid-State Lithium-Ion Batteries

EPA stated in its 2023 Lithium Battery Guidance that "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." The rationale for the "ignitable" characterization appears to be that these batteries contain electrolytes consisting primarily of ignitable solvents (i.e., solvents with flash points below 60°C (140°F)). See EPA Lithium Battery Guidance at 3 ("common materials used [in lithium-ion batteries include] an electrolyte that is frequently flammable and RCRA ignitable"); 40 C.F.R. § 261.21(a)(1) (defining the RCRA ignitability characteristic for liquids). The Agency has not explained the basis for claiming the batteries are reactive. In any event, researchers have been developing solid-state and other innovative lithium-ion batteries – some of which may be in the process of commercialization – that do not contain ignitable solvents and otherwise may not exhibit any hazardous waste characteristics.

Because universal wastes are defined as a subset of hazardous wastes, any lithium-ion batteries that are not hazardous would not be subject to any new universal waste requirements. See 40 C.F.R. § 273.2(b)(3) (stating that the universal waste rules for batteries "do not apply to persons managing ... batteries ... that are not hazardous wastes"). However, if the universal waste rule singles out "lithium batteries" for special universal waste regulation, this important nuance may be lost on the regulated community, the public, and possibly some regulators. Moreover, even if EPA attempts to clarify this point in the regulations or elsewhere, without clear guidance on when lithium batteries qualify as hazardous or non-hazardous (especially under the reactivity characteristic, which as noted above EPA has not explained in the context of lithium batteries), it may be difficult or impossible to determine when solid-state or other innovative lithium batteries can be managed without triggering universal waste or hazardous waste requirements. The result may be to discourage the development, commercialization, or recycling of low-risk lithium batteries.

Other regulatory authorities, such as the U.S. Department of Transportation (DOT) and local fire departments, may face similar issues to the extent that their rules impose requirements to address fire risks from lithium batteries as a uniform class. For example, under the Hazardous Materials Regulations issued by DOT's Pipeline and Hazardous Materials Safety Administration (PHMSA), lithium batteries must be packaged for transport in specific ways to minimize the potential for fires and the packages must be marked or labeled to highlight the fire hazard. See 49 C.F.R. § 173.185 (lithium battery packaging and marking) and § 172.447 (lithium battery labeling). These requirements may not be necessary or appropriate for solid-state or other innovative batteries. Moreover, even if DOT addresses the issue (e.g., by issuing a "special permit" allowing specific batteries to be shipped without these safeguards), in the absence of similar action by EPA, conflicts and confusion are likely to result (e.g., if a package is required to be marked with the words "Lithium Batteries" under EPA's universal waste rule, but doesn't bear a DOT lithium battery mark or label).

Potential Effect on Electronic Wastes

In the 1995 universal waste rule, EPA made clear that the rule "applies only to hazardous waste batteries ... and not to the unit or device in which the battery is contained." See 60 Fed. Reg. at 25,504 (stating also that "the device does not fall into any of the current categories of universal waste"). Although the preemption provision of the 1996 Battery Act states that the 1995 rule extends beyond rechargeable batteries to include "used rechargeable consumer products containing rechargeable batteries that are not easily removable rechargeable batteries," the term "rechargeable consumer products" covers only products with rechargeable batteries that have lead and/or cadmium electrodes or otherwise have been specified by EPA. See 42 U.S.C. § 14323(a) (preemption provision), § 14302(6) (defining rechargeable consumer products as products with "regulated batteries"), and § 14302(7) (defining regulated batteries as rechargeable batteries that have lead/cadmium electrodes or have been specified by EPA). Because lithium-ion batteries generally do not have such electrodes and have not been specified by EPA, electronic wastes (e-wastes) containing lithium-ion batteries are not covered by the Battery Act extension of the 1995 universal waste rule.

In light of the above, any changes to the universal waste rule for lithium batteries should not affect e-wastes. This is true even though several states (e.g., Arkansas, California, Colorado, Connecticut, Hawaii, Louisiana, Michigan, Nebraska, New Jersey, and Rhode Island) have separately classified e-wastes as universal wastes.

We caution that e-wastes remain subject to the requirement that they be evaluated for hazardous waste characteristics and managed accordingly, and EPA's 2023 Lithium Battery Guidance may have important implications for the status of e-wastes containing such batteries. Historically, EPA has asserted that "used electronics broadly defined (exclusive of CRTs [cathode ray tubes] and printed circuit boards) are unlikely to fail the Toxicity Characteristic regulatory test or exhibit any of the other hazardous waste characteristics." See EPA Office of Inspector General, "Improved Information Could Better Enable EPA to Manage Electronic Waste and Enforce Regulations" (June 21, 2013) at 28. However, the 2023 Lithium Battery Guidance may undercut this statement. As noted above, the Guidance indicates that lithium-ion batteries generally exhibit the characteristic of ignitability because they contain electrolytes with low flash points. Of course, e-wastes containing lithium-ion batteries (other than solid-state or other innovative batteries, as discussed above) also contain electrolytes with low flash points (within the batteries), which might suggest that the e-wastes are likewise ignitable hazardous wastes. To our knowledge, EPA has not explicitly extended its guidance on ignitability in this way, but it seems possible that the Agency might ultimately do so.

Other Key Issues

EPA has not indicated that the proposal would address any of the other critical RCRA issues associated with lithium battery recycling that the Agency failed to address in its 2023 Lithium Battery Guidance. See generally Beveridge & Diamond, "New EPA Guidance on Lithium-Ion Batteries Leaves Critical Questions Unanswered" (June 7, 2023). As a result, it is questionable whether the proposal will seek to resolve key issues such as: (i) the potential effect of the Battery Act on state variations in the definition of solid or hazardous waste or key exclusions (e.g., the household waste or HSM exclusions) as they apply to lithium-ion batteries, (ii) the application of the RCRA Land Disposal Restrictions (LDR) program to "black mass" or residues from the recycling of lithium-ion batteries, (iii) the eligibility of black mass for "partially reclaimed materials" variances, or (iv) the potential availability of regulatory exemptions for thermal processing of lithium batteries in industrial furnaces (e.g., smelting, melting, or refining furnaces).

Proposal to Classify and Regulate PV Solar Panels as Universal Wastes

PV solar panels are not currently classified as universal wastes under federal law, but have been designated as universal wastes by a few states (e.g., California and Hawaii) and are being considered for universal waste classification by other states (e.g., New York and North Carolina). EPA's upcoming proposal would apparently classify PV solar panels as universal wastes and establish universal waste standards for them, similar to the existing rules for other universal wastes. According to the recent Regulatory Agenda, "[t]he streamlined universal waste regulations are expected to (1) ease regulatory burdens on generators of solar panel waste, (2) promote the collection and recycling of solar panels, and (3) encourage the development of municipal and commercial programs to reduce the quantity of these wastes going to municipal solid waste management."

The Hazardous Waste Subcommittee of ASTSWMO has expressed support for a universal waste rule for PV solar panels. However, it urged EPA, in the upcoming rulemaking or elsewhere, to address (a) the potential application of the RCRA household waste exclusion to used panels from residential structures and (b) technical issues associated with characterizing solar panels as hazardous or non-hazardous wastes.

Looking Ahead

As noted above, EPA is projecting a formal proposed rule in February 2026. There may currently be a brief opportunity to influence that proposal. Once the proposal is issued, the Agency will provide a more formal opportunity for public comment and then develop a final rule, which EPA anticipates in August 2027. Any final rule would not take effect unless and until adopted by the states (except in non-authorized states). The changes to the universal waste rule for lithium batteries might be deemed more stringent requirements that authorized states would have to adopt (subject to the discussion above regarding potential preemption under the Battery Act). However, the addition of PV solar panels to the universal waste rule would presumably be deemed a less stringent rule that authorized states would not be required to adopt. State adoption could occur over several years. In the meantime, some states may move forward with changes to their own universal waste rules for solar panels or lithium batteries (subject again to the discussion above regarding the Battery Act).

Additional changes to the federal and state universal waste rules may also be on the horizon. For example, the American Coatings Association, Inc. (ACA) and PaintCare Inc. (PaintCare) petitioned EPA on February 21, 2024, to classify and regulate paint wastes as universal wastes, much as several states (e.g., Illinois, Maine, New Jersey, New York, Ohio, Pennsylvania, Texas, and Vermont) have already done.

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