Lithium - Ion Batteries and EPCRA 311-312 Reporting Requirements

When are lithium - ion batteries subject to the EPCRA Sections 311 and 312 Hazardous Chemical Inventory Reporting requirements?

The reporting requirements of EPCRA sections 311 and 312, Hazardous Chemical Inventory Reporting, [40 CFR part 370 apply to owners and operators of facilities that are required to prepare or have a Safety Data Sheet (SDS) [formerly known as Material Safety Data Sheet (MSDS)] for any hazardous chemical as defined under the Occupational Safety and Health Administration’s (OSHA) Hazardous Communication Standards (HCS) [29 CFR 1910.1200(c)], except those hazardous chemicals that are exempt from reporting under the OSHA HCS [29 CFR 1910.1200(b)(6)] or the EPCRA section 311(e).

Exemptions that may apply to lithium-ion batteries include the Consumer Product Exemption [40 CFR 370.13(c)(1)] and the Resource Conservation and Recovery Act (RCRA) exemption [29 CFR 1910.1200(b)(6)(i)]. These exemptions are explained further below.

For more information on the EPCRA Hazardous Chemical Inventory Reporting requirements please visit: https://www.epa.gov/epcra/epcra-sections-311-312

What does it mean for lithium-ion batteries to be exempt from EPCRA Sections 311 and 312 Hazardous Chemical Inventory Reporting requirements?

The Hazard Communication Standard [29 CFR 1910.1200(b)(6)] and EPCRA section 311(e) [40 CFR 370.13(c)] both provide exemptions from the definition of a hazardous chemical. If lithium-ion batteries are exempt from the definition of a hazardous chemical, they do not need to be reported as a hazardous chemical under EPCRA sections 311 or 312.

Please note that even though lithium-ion batteries may be exempt from the definition of a hazardous chemical, they may still be reportable under EPCRA as other classes of chemicals:

If lithium-ion batteries are comprised of chemicals on the CERCLA list of hazardous substances [40 CFR 302.4], reporting of releases may be required under CERCLA 103 and EPCRA 304.
If lithium-ion batteries are comprised of toxic chemicals under EPCRA 313 (Toxics Release Inventory) [40 CFR 372.65], reporting may be required to the Toxics Release Inventory (EPCRA Section 313).

What is the Consumer Product Exemption and how does it apply to lithium-ion batteries?

Some lithium-ion batteries may be exempt from EPCRA sections 311 and 312 Hazardous Chemical Inventory Reporting requirements under EPCRA section 311(e)(3) [40 CFR 370.13(c)(1)], which is often referred to as the Consumer Product Exemption. The Consumer Product Exemption applies to any lithium-ion battery to the extent it is used for personal, family, or household purposes, or is present in the same form and concentration as a product packaged for distribution and use for the general public. This exemption applies to household or consumer lithium-ion batteries, either in use by the general public or industrial use when in the same form and concentration as the product intended for use by the public.

The exemption applies to such lithium-ion batteries when purchased in larger quantities by industrial facilities if packaged in substantially the same form as the consumer product and present in the same concentration. The exemption does not apply to lithium-ion batteries present in different concentrations from the consumer products even if the batteries are only used in small quantities. This exemption does not apply to any large commercial type batteries that are not available for purchase or use by the general public. [October 15, 1987, 52 FR 38348).

Are End-of-Life lithium-ion batteries (for waste or recycle) exempt from the EPCRA Sections 311 and 312 Inventory Reporting requirements?

End-of-Life lithium-ion batteries may be exempt from EPCRA sections 311 and 312 Hazardous Chemical Inventory Reporting requirements if the batteries meet the definition of a Resource Conservation and Recovery Act (RCRA) hazardous waste [42 U.S.C. 6903(5)] and are subject to RCRA regulations. RCRA regulates hazardous waste and also universal wastes. Universal wastes are certain hazardous wastes, including batteries, that are subject to certain specific universal waste regulations at 40 CFR part 273. This EPCRA exemption is due to an OSHA HCS exemption [29 CFR 1910.1200(b)(6)(i)], which exempts RCRA hazardous wastes. Thus, RCRA hazardous wastes and universal wastes, because they are subject to RCRA regulations, are eligible for this exemption from EPCRA 311 and 312 hazardous chemical reporting.

End-of-Life batteries that may not be exempt from EPCRA hazardous chemical reporting requirements include Lithium-ion batteries that are handled under the transfer based exclusion [40 CFR 261.4(a)(24)] and any materials that are exempted or excluded from being hazardous waste by a general recycling exclusion. The term “End-of-Life” does not include the reuse case, where a battery might have been used once and then gets refurbished or used in another application. Reuse case batteries are not solid waste and therefore do not meet the RCRA exemption [RCRA Online Document #14668 and 71 FR 42929–30; July 28, 2006].

To determine if your operations and materials fall under a general recycling exclusion, please see Regulatory Exclusions and Alternative Standards for the Recycling of Materials, Solid Wastes and Hazardous Waste – Recycled Materials that are not Subject to RCRA Hazardous Waste Regulation.

For more information:

Are recycled batteries exempt from the EPCRA Sections 311 and 312 Hazardous Chemical Inventory Reporting requirements under the RCRA hazardous waste exemption?

No. Once materials and batteries have completed the recycling or reclamation processes, the new materials and products are no longer covered under the RCRA regulations, and are therefore not eligible for the EPCRA hazardous waste exemption..

Are lithium-ion batteries considered to be “articles” under the OSHA HCS and for EPCRA Sections 311 and 312 Inventory Reporting Requirements?

No. OSHA has determined that lithium-ion batteries are not considered to be “articles” and are subject to the OSHA HCS regulations. Lithium-ion batteries are not considered to be articles because although they are sealed, they have the potential to leak, spill, or break during normal conditions of use and in foreseeable emergencies causing exposure to chemicals.

Source: https://www.osha.gov/laws-regs/standardinterpretations/2021-06-23

Can states require that lithium-ion batteries be reported as Hazardous Chemicals, if reporting isn’t a federal requirement?

Yes. States, tribes, and territories can have more stringent applicability and reporting requirements for lithium-ion batteries.

“States were always given the flexibility to implement the EPCRA program as necessary to meet the goals of EPCRA, which is to prepare for and respond to releases of EHSs and to provide the public with information on potential chemical risks in their communities. This flexibility includes adding more chemicals, setting lower reporting thresholds and creating a reporting form or format that includes more information than is required by the Federal reporting requirements.” (75 FR 39854; July 13, 2010).

Facilities should contact their state for the specific requirements for that state.

Lithium - Ion Batteries and EPCRA 311-312 Reporting Requirements

Emergency Planning and Community Right-to-Know Act (EPCRA)