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.

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.

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.

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).