China and the European Union (EU) recently finalized very different rules for the classification and regulation of black mass, a material resulting from the initial step of processing end-of-life lithium-ion batteries (LIBs) and LIB manufacturing scrap for purposes of recovering critical minerals. As discussed below, the EU has classified black mass as a hazardous waste, while China has classified the material as a non-waste if it meets certain criteria. These conflicting approaches reflect the different states of the recycling industries in each region and will have important implications for worldwide trade in LIBs, black mass, and associated metals. Related developments are on the horizon in other countries and among the parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention).
China
On August 1, 2025, China will lift its import ban on black mass through an “Announcement on Regulating the Import Management of Recycled Black Powder Raw Materials for Lithium-ion Batteries and Recycled Steel Raw Materials,” issued by the Chinese Ministry of Ecology and Environment (MEE) and other agencies on June 10, 2025. Under the new Announcement, black mass that meets certain standards will qualify as non-waste eligible for import. Different standards have been established for black mass from batteries containing nickel and/or cobalt (e.g., NMC or LCO batteries) and black mass from batteries with lithium iron phosphate (i.e., LFP batteries). Each type of black mass must be packaged separately, not mixed with other types of recycled raw materials, and declared separately to customs authorities.
As a result of the Announcement, qualifying black mass can be imported freely (i.e., without any waste restrictions) into China from any other country that classifies the material as non-waste or non-hazardous. That includes, for example, the United States, as long as the black mass “passes” the Toxicity Characteristic Leaching Procedure (“TCLP”), which the U.S. Environmental Protection Agency (EPA) has indicated it generally will if adequate measures are in place to prevent contamination from other battery chemistries. A prior B&D news alert, “New EPA Guidance on Lithium-Ion Batteries Leaves Critical Questions Unanswered,” discusses EPA’s guidance that black mass is generally waste, but non-hazardous, under U.S. law. Qualifying black mass can also be imported into China from countries that classify the material as hazardous waste, as long as the Prior Informed Consent (PIC) and related requirements of the Basel Convention are satisfied, and as long as the shipment is not from a member of the Organization for Economic Cooperation and Development (OECD) that adheres to the “Basel Ban Amendment.” The Ban Amendment to the Basel Convention generally prohibits hazardous waste shipments from OECD members to non-members (i.e., countries not listed in Annex VII of the Basel Convention).
This Announcement, in part, reflects the tremendous unused capacity in China for refining black mass into critical minerals. According to some estimates, China has more than 85% of the worldwide refining capacity for black mass, and 70-80% of that capacity is currently idle. As a result, the country is eager to obtain access to black mass of a quality that can be used in its refining facilities. Indeed, China is also considering opening its borders to import of end-of-life batteries, much as it has now done for black mass.
European Union
On June 19, 2025, a recent decision by the European Commission amending the European List of Wastes (LoW) to classify black mass from lithium-based batteries (and other battery chemistries) as hazardous wastes will formally enter into force. See Commission Delegated Decision (EU) 2025/934 (March 5, 2025), Annex, Paragraph 6 (establishing new hazardous waste code 19 14 02, covering the “intermediate fraction from the thermal and/or mechanical treatment of waste lithium-based batteries and lithium-based battery manufacturing waste containing a mixture of electrode materials”). This decision resolves previous uncertainty about the status of black mass in Europe, which had different EU member countries taking different positions on the issue.
Under the amended LoW, which will “apply” (i.e., become mandatory) starting on November 9, 2026 (with individual EU member countries potentially implementing it earlier), EU countries will be prohibited from sending black mass to non-OECD countries, since the EU adheres to the Basel Ban Amendment (and, in fact, prohibited shipments of hazardous wastes to non-OECD countries even before that Amendment, through the EU Waste Shipment Regulation (WSR)). Shipments from EU countries to other OECD countries – including the U.S. – will continue to be allowed for purposes of recovery, as long as the PIC and related requirements of the OECD Council Decision on the Control of Transboundary Movements of Wastes Destined for Recovery Operations (OECD Decision) are satisfied. Black mass will still be allowed to be imported into the EU, subject to the requirements of either the Basel Convention or the OECD Decision, as applicable.
This approach is almost the opposite of that taken by China (as discussed above) and reflects, at least in part, the very different nature of the recycling market in Europe. Europe’s capacity for refining black mass is currently only a very small fraction compared to the capacity in China. However, the EU is eager to develop and expand its refining capacity to maintain strategic control over the critical minerals in LIBs/black mass and establish a circular economy for such materials. As a result, it is not surprising that the new law welcomes black mass from anywhere in the world, but significantly limits exports out of the region.
United States
While there have not been any recent developments related to the classification of black mass in the U.S., it is instructive to compare EPA’s approach to the approaches in China and the EU, especially because of the status of the U.S. as one of the few countries worldwide that are not party to the Basel Convention. As noted above, EPA has indicated that black mass is generally a waste under U.S. law. The Agency’s statements in this regard may be overbroad, as they ignore the possibility that black mass might not be classified as waste if managed under the Hazardous Secondary Materials (HSM) exclusions available under federal law and the law of many states, if covered by a “partially reclaimed material” variance, or if derived exclusively from battery manufacturing scrap and/or unused LIBs (e.g., off-specification batteries). In any event, this issue may be moot if the black mass is non-hazardous (i.e., if it passes the TCLP), which will generally be the case unless the feedstock to the process producing the black mass is contaminated by battery chemistries other than lithium-ion or by other hazardous wastes.
Because the U.S. is not party to the Basel Convention, the Parties to the Convention (191 countries and the EU) are prohibited from trading in hazardous wastes with the U.S., absent an alternative agreement or arrangement that meets the obligations of Article 11 of the Convention, such as the OECD Decision. To the extent that a potential trading partner is located in a country that does not view black mass as a hazardous waste, the Party-to-non-Party trade prohibition generally should not matter (assuming the black mass passes the TCLP or otherwise is not hazardous waste under U.S. law, and assuming there is not a transit country involved that takes a contrary position). However, if the potential trading partner is in a country that views the black mass as hazardous waste, transboundary shipments to or from the U.S. will generally either be prohibited (if the country is outside the OECD) or subject to PIC controls (if the country is an OECD member).
It is debatable whether this framework aligns well with the economic and strategic interests of the U.S., as it will enable black mass that passes the TCLP to move to China without controls (if the black mass meets the new Chinese standards and thus is deemed non-waste by that country), while significantly limiting imports and imposing controls on trade with other OECD countries. However, other laws could potentially modify the framework. For example, during the last Congress, a bill was introduced with the specific purpose of prohibiting the export of black mass to China. See H.R. 10376, 118th Cong. (2024) (“To amend the Export Control Reform Act of 2018 to prevent the People’s Republic of China from exploiting items such as black mass and certain other products produced in the United States”).
Other Countries & the Basel Convention
The theme of laws aligning with economic and strategic interests is also developing in other countries. For example, Korea, which, like China, has excess refining capacity, is moving to adopt similar rules as China (although perhaps with different standards for the black mass that will be deemed non-waste). On the other hand, India, which is trying to develop its own refining capacity, has moved to classify black mass as hazardous waste.
Meanwhile, several developments are underway at the global level under the Basel Convention that could significantly impact the transboundary movement of LIBs and black mass.
- At the seventeenth meeting of the Conference of Parties to the Convention (COP-17), held from April 28 to May 9, 2025, the Parties agreed to prioritize negotiations on amendments to Annex I (hazardous constituents and categories) and Annex III (hazardous characteristics). These negotiations are expected to expand the scope of wastes classified as hazardous under the Convention and in national legislation worldwide. The EU has proposed adding LIB components, such as lithium, cobalt, and nickel, to the list of Annex I constituents. If adopted, this approach might lead most Parties to classify lithium-ion batteries and black mass as presumptively hazardous wastes under the Convention.
- Basel Parties also agreed at COP-17 to accelerate the preparation of Technical Guidelines on Environmentally Sound Management of Other Waste Batteries than Lead-acid Batteries, the latest draft of which refers to black mass as “waste.” These guidelines will inform waste classification determinations for used batteries managed for “second life,” as well as hazardous waste classifications and management for waste lithium-ion and other batteries. Parties and observers may submit comments to the Basel secretariat on the revised draft guidelines until August 31, 2025.
- Negotiations on the technical guidelines for batteries are entering the final stage, with the expectation that the Parties will adopt final technical guidelines on battery waste classification and management at COP-18 (April 19-30, 2027, Panama). Work on amendments to Annexes I and III of the Convention will also be considered at COP-18 but may require further negotiations, given the broader implications for national waste legislation.
Implications for the Business Community
Companies throughout the battery supply chain should closely monitor the rapidly evolving legal landscape for LIBs and black mass in the U.S., as well as in other key markets and at the international level. They should also consider engaging with relevant government authorities to influence the direction of national waste classification and trade rules. Finally, companies should engage with influential countries that lead work under the Basel Convention to ensure that global requirements align with broader circularity goals and the need for resilient supply chains for critical minerals. As battery chemistries change and more recycling operations come online, shifts in the regulations can be expected for the foreseeable future.
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