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Lithium Ion Batteries and EPCRA 311 / 312 Reporting Requirements

Are lithium ion batteries subject to MSDS Reporting under EPCRA Section 311 and Chemical Inventory (i.e., Tier II) Reporting under EPCRA Section 312?

The reporting requirements of Sections 311 and 312 of EPCRA apply to owners and operators of facilities that are required to prepare or have a Material Safety Data Sheet (MSDS) [also known as the Safety Data Sheet (SDS)] for any hazardous chemical as defined under the Occupational Safety and Health Act (OSHA) or its Hazardous Communication Standards (HCS).  While, OSHA HCS does not apply to items considered “articles”, OSHA has determined, similar to lead-acid batteries, that lithium ion batteries are not considered “articles” and are subject to the OSHA HCS regulations.  Although these batteries are sealed, they have the potential to leak, spill or break during normal conditions of use and in foreseeable emergencies causing exposure to chemicals.  Thus, since owners / operators of facilities are required to prepare or have an MSDS for lithium ion batteries, they must complete MSDS Reporting and Tier II Reporting if the applicable reporting thresholds in 40 CFR Part 370.10 are met or exceeded.

Some lithium ion batteries may be exempt under EPCRA Section 311(e)(3), often referred to as the Consumer Product Exemption.  EPCRA Section 311(e)(3) exempts from the definition of hazardous chemical any substance 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 by the general public (40 CFR 370.13(c)(1)). This exemption would not apply to any large commercial type batteries that are not available for purchase or use by the general public.