EPCRA §313 chemicals contained in articles are exempt from threshold determinations and release and other waste management calculations. However, a manufactured item can only be considered an “article” so long as (i) the item was formed to a distinct shape or design during manufacture, (ii) the item has end use functions dependent in whole or in part upon its shape or design, and (iii) the item does not release a toxic chemical under normal conditions of processing or other use. If a facility has an aggregate release of greater than 0.5 pounds of a TRI chemical from the processing or otherwise use of an item and all like items, then the item and all like items do not qualify as “articles,” and all toxic chemicals contained in the items are ineligible for the articles exemption. If two items are made from different materials or formed to different shapes or designs, are they considered like items?
Items made from two different types of materials are not considered like items. In other words, the eligibility of items made from one type of material for the exemption does not affect the eligibility of items made from another type of material for the articles exemption. For example, stainless steel tubes and aluminum tubes are not considered like items. Therefore, if stainless steel tubes meet all of the criteria for the exemption, they would continue to qualify for the exemption even if the aluminum tubes do not qualify.
Similarly, items that have been formed to a distinct shape or design during their manufacture are not considered to be like items with respect to items that have been formed to a different shape or design. For example, steel sheets, plates, coils, and tubes would not be considered like items.