By the time you read this article, the reporting deadline for submitting your Toxic Release Inventory (TRI) Reports will be a little less than a month away. Before you finalize your TRI reports you might want to review whether and how your facility is applying the “Articles Exemption” under §372.38 of 40 CFR Part 372. The “Articles Exemption” exempts EPCRA Section 313 chemicals that are contained in “articles” that are processed or otherwise used at a TRI facility from threshold determinations, as well as releases and other waste management calculations.
The “Articles Exemption” is one of the two most commonly used exemptions found in §372.38 of 40 CFR Part 372, especially if your facility conducts a lot of metal machining. If your facility takes a block of aluminum or steel and machines it into an engine block, crankshaft, or head gasket cover then this exemption won’t do you much good. However, if your facility takes spools of copper wire and cuts them to length or takes stainless steel pipe or rod and cuts them to length, then this exemption may help you. How do you apply the “Articles Exemption” if your facility processes sheet metal in various thicknesses and in various grades of carbon steel and stainless steel or processes metal pipe in various diameters and various grades of carbon steel and stainless steel? In other words, what does US EPA or the state agencies consider a “like article” when applying the “Articles Exemption”?
US EPA maintains a database of 990 Questions and Answers to help facilities comply with the TRI reporting requirements. Fifty-six (56) of the Questions and Answers address certain aspects of the “Articles Exemption,” however, none of them adequately address the question of where, exactly, do you draw the line when determining what is a “like article” when applying the “Articles Exemption.” The more narrowly you apply what is a “like article” the more helpful this exemption is. For example, is a 1-inch diameter 316 stainless steel rod and a 1-inch diameter 304 stainless steel rod considered “like articles”? Is a 1-inch diameter 316 stainless steel rod and a 2-inch diameter 316 stainless steel rod considered “like articles”? Let’s review the “Articles Exemption” in §372.38 to see if we can find the answer.
Articles. If a toxic chemical is present in an article at a covered facility, a person is not required to consider the quantity of the toxic chemical present in such article when determining whether an applicable threshold has been met under §372.25, §372.27, §372.28, or §372.29 or determining the amount of release to be reported under §372.30. This exemption applies whether the person received the article from another person or the person produced the article. However, this exemption applies only to the quantity of the toxic chemical present in the article. If the toxic chemical is manufactured (including imported), processed, or otherwise used at the covered facility other than as part of the article, in excess of an applicable threshold quantity set forth in §372.25, §372.27, or §372.28, the person is required to report under §372.30. Persons potentially subject to this exemption should carefully review the definitions of article and release in §372.3. If a release of a toxic chemical occurs as a result of the processing or use of an item at the facility, that item does not meet the definition of article.
Well, the exemption itself does not seem to shed light on this issue. It doesn’t discuss what is a “like article” or “similar article.” As suggested by the exemption, let’s take a look at the definition of “Articles” in §372.3 to see if that helps:
Article means a manufactured item: (1) Which is formed to a specific shape or design during manufacture; (2) which has end use functions dependent in whole or in part upon its shape or design during end use; and (3) which does not release a toxic chemical under normal conditions of processing or use of that item at the facility or establishments.
The definition does define an “Article” as an item of specific shape or design, but does that literally mean a 1-inch diameter rod is a separate “Article” from a 2-inch diameter rod or a 316 Stainless Steel rod is a separate “Article” from a 304 Stainless Steel Rod? The answer to this issue still appears to be unclear. Let’s take a look at the Questions and Answers database to see if that helps.
Question 448 seems to come the closest to answering this question. Question 448 states that stainless steel tubes and aluminum tubes are not considered like items. It also states that steel sheets, plates, coils, and tubes are not like items either. I don’t think most people question whether or not stainless steel tubes and aluminum tubes are like items. I also don’t think most people question whether sheets, plates, coils, and tubes are like items. These are all examples of separate “Articles” for purposes of applying the “Articles Exemption.” So, the question still remains, is a 1-inch diameter 316 stainless steel rod and a 1-inch diameter 304 stainless steel rod and is a 1-inch diameter 316 stainless steel rod and a 2-inch diameter 316 stainless steel rod considered “like articles”? Seems like this question still is unanswered.
Based on guidance GT has obtained from Ohio EPA, Ohio considers all grades of carbon steel to be like items, all grades of stainless steel to be like items, and all grades of aluminum to be like items. So, a 1-inch diameter 316 stainless steel rod and 1-inch diameter 304 stainless steel rod are each considered like items and must be aggregated when conducting threshold determinations.
Ohio EPA guidance on whether a 1-inch diameter 316 stainless steel rod and a 2-inch diameter 316 stainless steel rod is a bit more open ended. However, GT believes Ohio EPA would consider these to each be separate items and should not be aggregated when conducting threshold determinations.
If this topic is important to you, GT suggests that you pursue this question with your local regulatory agency or US EPA regional office. When the “Articles Exemption” is applied rigorously it can be a powerful tool to minimizing the number of reportable chemicals.
In closing, there are two additional important points to keep in mind when applying the “Articles Exemption.” One, each “like article” must retain its original shape and design when being processed or otherwise used at your facility. For example, extruding a copper rod into copper wire would not qualify for the “Article Exemption.” Two, each “like article” must not release a toxic chemical when being processed or otherwise used at your facility. US EPA allows facilities to emit up to 0.5 lbs of a toxic chemical and still qualify for the “Articles Exemption.” Recycling for the purposes of applying the “Articles Exemption” is not considered a release. So, a facility that cuts metal shapes out of sheet metal and recycles the scrap would qualify for the “Articles Exemption” so long as the cutting process does not generate air, water, or land releases. If a plasma cutter is used, then you may release more than 0.5 lbs of a toxic chemical as air emissions. If a water jet cutter is used, then you may release more than 0.5 lbs of a toxic chemical as wastewater. If a baghouse is used, then you may release more than 0.5 lbs of toxic chemical as air and/or land emissions. Baghouse exhaust emissions may exceed 0.5 lbs and the baghouse dust may be sent to a landfill in amounts greater than 0.5 lbs.
Contact Ron Hansen at rhansen@gtenvironmental.com or (614) 794-3570 Ext. 121 for assistance with preparing your TRI reports.