Proposed Rule2024-31406
Toxics Release Inventory (TRI); Clarification of Toxic Chemicals Due to Automatic Additions of Per- and Polyfluoroalkyl Substances Under the National Defense Authorization Act
Primary source
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Published
January 17, 2025
Issuing agencies
Environmental Protection Agency
Abstract
The National Defense Authorization Act for Fiscal Year 2020 (NDAA) adds certain per- and polyfluoroalkyl substances (PFAS) automatically to the Toxics Release Inventory (TRI) beginning January 1 of the year following specific triggering events. The Environmental Protection Agency (EPA or Agency) is proposing to make conforming edits to the TRI regulation to explicitly include PFAS that are added to the TRI chemical list automatically pursuant to the NDAA in the regulation's definition of "toxic chemical." This edit confirms that the TRI supplier notification provision requires covered suppliers to notify customers receiving a mixture or other trade name product containing a TRI-listed chemical with the first shipment of each calendar year, with such a requirement beginning on January 1 of the applicable year; thus, supplier notifications are required as of January 1 for any NDAA-added PFAS.
Full Text
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<title>Federal Register, Volume 90 Issue 11 (Friday, January 17, 2025)</title>
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[Federal Register Volume 90, Number 11 (Friday, January 17, 2025)]
[Proposed Rules]
[Pages 5795-5798]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-31406]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 372
[EPA-HQ-OPPT-2024-0507; FRL 12309-01-OCSPP]
RIN 2070-AL24
Toxics Release Inventory (TRI); Clarification of Toxic Chemicals
Due to Automatic Additions of Per- and Polyfluoroalkyl Substances Under
the National Defense Authorization Act
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The National Defense Authorization Act for Fiscal Year 2020
(NDAA) adds certain per- and polyfluoroalkyl substances (PFAS)
automatically to the Toxics Release Inventory (TRI) beginning January 1
of the year following specific triggering events. The Environmental
Protection Agency (EPA or Agency) is proposing to make conforming edits
to the TRI regulation to explicitly include PFAS that are added to the
TRI chemical list automatically pursuant to the NDAA in the
regulation's definition of ``toxic chemical.'' This edit confirms that
the TRI supplier notification provision requires covered suppliers to
notify customers receiving a mixture or other trade name product
containing a TRI-listed chemical with the first shipment of each
calendar year, with such a requirement beginning on January 1 of the
applicable year; thus, supplier notifications are required as of
January 1 for any NDAA-added PFAS.
DATES: Comments must be received on or before February 18, 2025.
ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPPT-2024-0507, online at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the online instructions for submitting
comments. Do not submit electronically any information you consider to
be Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Additional instructions on
commenting and visiting the docket, along with more information about
dockets generally, is available at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
FOR FURTHER INFORMATION CONTACT: Stephanie Griffin, Data Gathering,
Management, and Policy Division (Mailcode 7406M), Office of Pollution
Prevention and Toxics, Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number:
(202) 564-1463;
[[Page 5796]]
email address: <a href="/cdn-cgi/l/email-protection#aacdd8c3ccccc3c484d9decfdac2cbc4c3cfeacfdacb84cdc5dc"><span class="__cf_email__" data-cfemail="5d3a2f343b3b3433732e29382d353c3334381d382d3c733a322b">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Does this action apply to me?
You may be affected by this action if you own or operate a facility
or establishment that is required to provide TRI supplier notifications
to its customers pursuant to 40 CFR 372.45. To determine whether your
facility is affected by this action, you should carefully examine the
applicability criteria in 40 CFR part 372, subpart C.
The following list of North American Industry Classification System
(NAICS) codes is not intended to be exhaustive, but rather provides a
guide to help readers determine whether this document applies to them.
Potentially affected entities include facilities included in the
following NAICS manufacturing codes (corresponding to Standard
Industrial Classification (SIC) codes 20 through 39): 311*, 312*, 313*,
314*, 315*, 316, 321, 322, 323*, 324, 325*, 326*, 327*, 331, 332, 333,
334*, 335*, 336, 337*, 339*, 111998*, 113310, 211130*, 212323*,
212390*, 488390*, 512230*, 512250*, 5131*, 516210*, 519290*, 541713*,
541715* or 811490*.
* Exceptions and/or limitations exist for these NAICS codes.
If you need help determining applicability, consult the technical
contact listed under FOR FURTHER INFORMATION CONTACT.
B. What action is the Agency taking?
EPA is proposing to make conforming edits to the TRI regulation's
definition of ``toxic chemical'' to explicitly include the PFAS that
are added to the TRI chemical list automatically pursuant to the
National Defense Authorization Act for Fiscal Year 2020 (NDAA) section
7321(c). Because the NDAA adds certain PFAS automatically to the TRI
beginning January 1 of the year following specific triggering events,
such PFAS are effectively TRI-listed chemicals (i.e., ``toxic
chemicals'') as of the applicable January 1. EPA proposes to amend the
Code of Federal Regulations (CFR) to confirm that the TRI chemical list
includes all chemicals at 40 CFR 372.65 and any PFAS that have been
automatically added pursuant to section 7321(c) of the NDAA.
C. What is the Agency's authority for taking this action?
This action is issued under the Emergency Planning and Community
Right-to-Know Act (EPCRA) section 313 (42 U.S.C. 11001 et seq.),
section 6607 of the Pollution Prevention Act (PPA) (42 U.S.C. 13106),
and NDAA section 7321 (Pub. L. 116-92).
D. Why is the Agency taking this action?
EPA is taking this action to align the supplier notification
provision with the effective date for addition of a chemical on the
EPCRA section 313 list (including those automatically added pursuant to
NDAA section 7321). This action is also being taken in response to
questions from stakeholders regarding the effective date of supplier
notifications for NDAA-added PFAS.
NDAA section 7321(c) adds certain PFAS to the TRI list on January 1
of the year following the EPA activity that caused the addition of the
chemical to the TRI list. If an EPA triggering event occurs, the NDAA
automatically adds the associated PFAS to TRI as of the following
January 1, and EPA then, to align the CFR listing of TRI chemicals with
the TRI chemical list as modified by NDAA section 7321(c), issues a
final rule codifying the addition of those chemicals to the list at 40
CFR 372.65 each year. Prior to an updated TRI chemical list in the CFR,
the regulated community can find information on PFAS added to the TRI
reporting list via NDAA section 7321(c) as of January 1 of each year at
<a href="https://www.epa.gov/toxics-release-inventory-tri-program/addition-certain-pfas-tri-national-defense-authorization-act">https://www.epa.gov/toxics-release-inventory-tri-program/addition-certain-pfas-tri-national-defense-authorization-act</a>.
Supplier notifications are first required as of the addition of a
chemical substance to the TRI list, which includes the January 1
listing date of a PFAS added via NDAA section 7321(c). This is
consistent with the longstanding policy of the supplier notification
requirement being aligned with the effective date for a chemical on the
TRI list. Thus, supplier notifications are first required for a
chemical added to the TRI list pursuant to NDAA section 7321(c)
beginning in the same year as the effective date for that chemical.
Because the automatic additions include PFAS associated with triggering
activities through December 31 of each year, there is some time between
when the supplier notification requirements are effective on January 1
and when the rule to update the TRI list in the CFR to align with any
applicable NDAA section 7321(c) listings is published.
The TRI supplier notification provision requires covered suppliers
to initiate notifications for any chemical on the TRI list as of
January 1 of that year. The supplier notification provision, which pre-
dates the enactment of the NDAA, points to the chemical list codified
at 40 CFR 372.65. This action confirms the longstanding supplier
notification requirements for TRI-listed chemicals as of their
effective dates by clarifying that the supplier notification provision
applies not only to chemicals listed at 40 CFR 372.65 but generally to
all TRI-listed chemicals. Thus, this action does not add any new
requirements, but rather clarifies the timing of the applicability of
existing requirements. Additionally, this proposal would further
clarify that all TRI regulations apply to chemicals added to the TRI
list by NDAA section 7321(c) by defining all such chemicals to be a
``toxic chemical'' for purposes of TRI regulations.
II. Background
A. What are TRI supplier notifications?
Supplier notifications accompanying mixtures or trade name products
containing a TRI chemical provide downstream facilities with
information necessary to support potential TRI reporting obligations.
Supplier notifications must include a statement that the mixture or
trade name product contains a TRI chemical, the chemical name, and
Chemical Abstracts Service Registry Number (CASRN), and the percentage
(by weight) of that chemical within the mixture or trade name product.
Notifications must be provided by a facility or establishment that
meets all three criteria: (1) Has a NAICS code that corresponds to
Standard Industrial Classification [SIC] codes 20-39 (generally,
manufacturing); (2) Manufactures (including imports) or processes a TRI
chemical; and (3) Sells or otherwise distributes that chemical within a
mixture or trade name product to TRI-covered facilities, or others who
may in turn distribute such mixture or trade name product to TRI-
covered facilities. If a facility meets all three criteria, then a
supplier notification is required with at least the first shipment of
the calendar year containing that TRI chemical. For chemicals newly
added to the TRI list, notifications must be provided starting with the
effective year of the chemical on the TRI list.
B. What is NDAA section 7321(c)?
Among other provisions, NDAA section 7321(c) identifies certain
regulatory activities that automatically add PFAS or classes of PFAS to
the TRI list of reportable chemicals. Specifically, PFAS or classes of
PFAS are added to the TRI list of reportable chemicals beginning
January 1 of the calendar year after any one of the following dates:
<bullet> Final Toxicity Value: The date on which the Administrator
finalizes a
[[Page 5797]]
toxicity value for the PFAS or class of PFAS;
<bullet> Significant New Use Rule: The date on which the
Administrator makes a covered determination for the PFAS or class of
PFAS;
<bullet> Addition to Existing Significant New Use Rule: The date on
which the PFAS or class of PFAS is added to a list of substances
covered by a covered determination;
<bullet> Addition as an Active Chemical Substance: The date on
which the PFAS or class of PFAS to which a covered determination
applies is:
<bullet>Added to the list published under the Toxic Substances
Control Act (TSCA) section 8(b)(1) (15 U.S.C. 2601 et seq.) and
designated as an active chemical substance under TSCA section
8(b)(5)(A); or
<bullet> Designated as an active chemical substance under TSCA
section 8(b)(5)(B) on the list published under TSCA section 8(b)(1).
Although the NDAA automatically updates the list of toxic chemicals
subject to EPCRA section 313 as of January 1, EPA must also publish a
final rule to update the toxic chemical list in the CFR. These final
rules and conforming CFR edits have trailed the January 1 effective
date.
III. Statutory and Executive Orders Reviews
Additional information about these statutes and Executive orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14094: Modernizing Regulatory Review
This action is not a significant regulatory action as defined in
Executive Order 12866 (58 FR 51735, October 4, 1993), as amended by
Executive Order 14094 (88 FR 21879, April 11, 2023), and was therefore
not subject to a requirement for Executive Order 12866 review.
B. Paperwork Reduction Act (PRA)
This action does not contain any new information collection burden
under the PRA, 44 U.S.C. 3501 et seq. Facilities that are affected by
the proposed rule are already required to comply with the supplier
notification provisions at 40 CFR 372.45. In addition, OMB has
previously approved the information collection activities involving
supplier notifications as contained in 40 CFR part 372 under EPA ICR
No. 2613.04; OMB Control No. 2070-0212.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA, 5
U.S.C. 601 et seq. In making this determination, EPA concludes that the
impact of concern for this action is any significant adverse economic
impact on small entities and that the Agency is certifying that this
action will not have a significant economic impact on a substantial
number of small entities because the action has no net burden on the
small entities subject to the action. This proposed rule adds no new
reporting requirements, and there would be no net increase in
respondent burden and costs. This action would only conform regulatory
text for the scope of ``toxic chemicals'' covered by TRI reporting and
supplier notifications already required by respondents. I have
therefore concluded that this action will have no net regulatory burden
for all directly regulated small entities.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate of $100 million
(in 1995 dollars and adjusted annually for inflation) or more as
described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or
uniquely affect small governments. The action imposes no enforceable
duty on any State, local or Tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999), because it will
not have substantial direct effects on the States, on the relationship
between the National Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have Tribal implications as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000) because it will
not have substantial direct effects on Tribal governments, on the
relationship between the Federal Government and the Indian Tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian Tribes. Thus, Executive Order 13175 does not
apply to this action. This action does not have tribal implications as
specified in Executive Order 13175 (65 FR 67249, November 9, 2000),
because it will not have substantial direct effects on Tribal
governments, on the relationship between the Federal Government and the
Indian Tribes, or on the distribution of power and responsibilities
between the Federal government and Indian Tribes. It does not have
substantial direct effects on Tribal government because this action
relates to toxic chemical reporting under EPCRA section 313, which
primarily affects private sector facilities. Thus, Executive Order
13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to regulatory actions considered significant under
section 3(f)(1) of Executive Order 12866 and that concern environmental
health or safety risks that EPA has reason to believe may
disproportionately affect children, per the definition of ``covered
regulatory action'' in section 2-202 of Executive Order (E.O.) 13045.
Since this is not a ``covered regulatory action,'' E.O. 13045 does
not apply. However, the Policy on Children's Health does apply.
Although this action does not concern an environmental health or safety
risk, the information obtained from the reporting required by this
proposed rule will be used to inform the Agency's decision-making
process regarding chemical substances to which children may be exposed.
This information will also assist the Agency and others in determining
whether the chemical substances included in this proposed rule present
potential risks, allowing the Agency and others to take appropriate
action to investigate and mitigate those risks.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not
likely to have a significant adverse effect on the supply, distribution
or use of energy and has not otherwise been designated by the
Administrator of the Office of Information and Regulatory Affairs as a
significant energy action.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve any technical standards. As such,
NTTAA section 12(d), 15 U.S.C. 272, does not apply to this action.
[[Page 5798]]
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All
Executive Order 12898 (59 FR 7629, February 16, 1994) directs
Federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice a part of their mission by
identifying and addressing, as appropriate, disproportionately high and
adverse human health or environmental effects of their programs,
policies, and activities on minority populations (people of color) and
low-income populations.
EPA believes that this type of action does not concern human health
or environmental conditions and therefore cannot be evaluated with
respect to potentially disproportionate and adverse effects on
communities with environmental justice concerns. This action involves
downstream notification requirements that will not affect the level of
protection provided to human health or the environment.
Although this action does not concern human health or environmental
conditions, EPA may identify and address environmental justice concerns
through information collected under TRI. The information obtained
through TRI reporting will lead to a better understanding of PFAS
releases, which can help inform and tailor future EPA actions regarding
PFAS. For example, EPA may identify and address environmental justice
concerns as a result of the PFAS information collected under TRI, which
is supported by supplier notification requirements that this rule is
clarifying. TRI reporting also better informs communities living near
facilities that report to TRI, by providing them with information about
PFAS releases and waste management practices occurring in their
communities. Overall, EPA believes that the information obtained could
be used by the public (including people of color, low-income
populations, and/or indigenous peoples) to inform their behavior as it
relates to potential exposure to PFAS and by government agencies and
others to identify potential problems, set priorities, and take
appropriate steps to reduce any potential human health or environmental
risks from PFAS.
List of Subjects in 40 CFR Part 372
Environmental protection, Community right-to-know, Reporting and
recordkeeping requirements, Toxic chemicals.
Dated: December 20, 2024.
Michal Freedhoff,
Assistant Administrator, Office of Chemical Safety and Pollution
Prevention.
Therefore, for the reasons set forth in the preamble, EPA proposes
to amend 40 CFR chapter I as follows:
PART 372--TOXIC CHEMICAL RELEASE REPORTING: COMMUNITY RIGHT-TO-KNOW
0
1. The authority citation for part 372 continues to read as follows:
Authority: 42 U.S.C. 11023 and 11048.
0
2. In Sec. 372.3, the definition of ``Toxic chemical'' is revised to
read as follows:
Sec. 372.3 Definitions.
* * * * *
Toxic chemical means a chemical or chemical category listed in
Sec. 372.65 or a chemical added to the Emergency Planning and
Community Right-to-Know Act (EPCRA) section 313 chemical list pursuant
to 15 U.S.C. 8921(c)(1).
* * * * *
[FR Doc. 2024-31406 Filed 1-16-25; 8:45 am]
BILLING CODE 6560-50-P
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