Articles Exemption Clarification Proposed Rule
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In 2009, EPA proposed to take two actions relating to the articles exemption under the Toxics Release Inventory (TRI) Program. First, EPA proposed to formally remove a paragraph of guidance dealing with releases due to natural weathering of products that appeared in the Reporting Forms and Instructions (RFI) from 1988 to 2001. This guidance was absent from the RFI after 2001, but formal notice of its removal was never issued. With this proposed rule, EPA intended to provided notice that this language has been removed and may not be relied on by reporting facilities. Second, EPA proposed an interpretation of how the articles exemption applies to the Wood Treating Industry, specifically to treated wood that has completed the treatment process.
Reasons for Issuing Proposed Rule
EPA learned that some confusion exists in the regulated community regarding a paragraph of guidance formerly found in the RFI, and that the wood treating industry had relied upon a misinterpretation of the paragraph in determining the amount of reportable releases from their facilities.
Definition of "Article"
As defined in the TRI regulations, an article is 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.
Explanation of the Articles Exemption
The articles exemption states that if a toxic chemical is present in an article at a covered facility, that facility is not required to consider the amount of the toxic chemical(s) contained in the article when calculating reportable quantities of TRI-listed chemicals. EPA created this very limited exemption to simplify reporting requirements. EPA has provided guidance materials to help regulated facilities understand the exemption.
EPA's Interpretation of the Articles Exemption as it Relates to the Wood Treating Industry
According to the language of the articles exemption, 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 an article, and the releases from the item are not exempt. Therefore, chemical releases from treated wood that is in storage must be reported, because the releases occur as a result of the wood's earlier processing or use.
Impact of This Rule on TRI Reporting Facilities
Under this rule, covered facilities will no longer be able to rely on the RFI guidance paragraph as a basis for not reporting certain toxic releases. Additionally, EPA's clarification of the articles exemption requires wood treating facilities to be more accurate and inclusive in their TRI calculations. This proposed rule is expected to create additional burden for only the wood preservation industry. EPA estimates that 252 wood preservation facilities will be affected by the rule, with a total estimated one-time compliance burden of $14,000.