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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 [www.gpo.gov]
[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 https://www.regulations.gov. 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 https://www.epa.gov/dockets.

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: [email protected].

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 
https://www.epa.gov/toxics-release-inventory-tri-program/addition-certain-pfas-tri-national-defense-authorization-act.
    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:
     Final Toxicity Value: The date on which the Administrator 
finalizes a

[[Page 5797]]

toxicity value for the PFAS or class of PFAS;
     Significant New Use Rule: The date on which the 
Administrator makes a covered determination for the PFAS or class of 
PFAS;
     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;
     Addition as an Active Chemical Substance: The date on 
which the PFAS or class of PFAS to which a covered determination 
applies is:
    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
     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 https://www.epa.gov/laws-regulations/laws-and-executive-orders.

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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