[Federal Register Volume 86, Number 105 (Thursday, June 3, 2021)]
[Rules and Regulations]
[Pages 29698-29701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11586]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 372

[EPA-HQ-TRI-2021-0049; FRL-10022-25]
RIN 2070-AK72


Implementing Statutory Addition of Certain Per- and 
Polyfluoroalkyl Substances (PFAS) to the Toxics Release Inventory 
Beginning With Reporting Year 2021

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is adding three per- 
and polyfluoroalkyl substances (PFAS) to the list of chemicals subject 
to toxic chemical release reporting under the Emergency Planning and 
Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act 
(PPA). This action implements the statutory mandate in the National 
Defense Authorization Act for Fiscal Year 2020 (FY2020 NDAA) enacted on 
December 20, 2019. As this action is being taken to conform the 
regulations to a Congressional legislative mandate, notice and comment 
rulemaking is unnecessary.

DATES: This final rule is effective July 6, 2021.

ADDRESSES: The docket for this action, identified by docket 
identification (ID) number EPA-HQ-TRI-2021-0049, is available at http://www.regulations.gov or at the Office of Pollution Prevention and 
Toxics Docket (OPPT Docket), Environmental Protection Agency Docket 
Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 
Constitution Ave. NW, Washington, DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the OPPT Docket is (202) 566-
0280. Please review the visitor instructions and additional information 
about the docket available at http://www.epa.gov/dockets.
    Due to the public health emergency, the EPA Docket Center (EPA/DC) 
and Reading Room is closed to visitors with limited exceptions. The 
staff continues to provide remote customer service via email, phone, 
and webform. For the latest status information on EPA/DC services and 
docket access, visit https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: For technical information contact: 
Daniel R.

[[Page 29699]]

Ruedy, Data Gathering and Analysis Division, Mail Code 7410M, Office of 
Pollution Prevention and Toxics, Environmental Protection Agency, 1200 
Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: 
(202) 564-7974; email address: [email protected].
    For general information contact: The Emergency Planning and 
Community Right-to-Know Act Hotline; telephone numbers: Toll free at 
(800) 424-9346 (select menu option 3) or (703) 348-5070 in the 
Washington, DC Area and International; or go to https://www.epa.gov/home/epa-hotlines.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    You may be potentially affected by this action if you manufacture, 
process, or otherwise use any of the PFAS listed in this rule. 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 action applies to them. Potentially 
affected entities may 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*, 
211130*, 212324*, 212325*, 212393*, 212399*, 488390*, 511110, 511120, 
511130, 511140*, 511191, 511199, 512230*, 512250*, 519130*, 541713*, 
541715* or 811490*. *Exceptions and/or limitations exist for these 
NAICS codes.
     Facilities included in the following NAICS codes 
(corresponding to SIC codes other than SIC codes 20 through 39): 
212111, 212112, 212113 (corresponds to SIC code 12, Coal Mining (except 
1241)); or 212221, 212222, 212230, 212299 (corresponds to SIC code 10, 
Metal Mining (except 1011, 1081, and 1094)); or 221111, 221112, 221113, 
221118, 221121, 221122, 221330 (limited to facilities that combust coal 
and/or oil for the purpose of generating power for distribution in 
commerce) (corresponds to SIC codes 4911, 4931, and 4939, Electric 
Utilities); or 424690, 425110, 425120 (limited to facilities previously 
classified in SIC code 5169, Chemicals and Allied Products, Not 
Elsewhere Classified); or 424710 (corresponds to SIC code 5171, 
Petroleum Bulk Terminals and Plants); or 562112 (limited to facilities 
primarily engaged in solvent recovery services on a contract or fee 
basis (previously classified under SIC code 7389, Business Services, 
NEC); or 562211, 562212, 562213, 562219, 562920 (limited to facilities 
regulated under the Resource Conservation and Recovery Act, subtitle C, 
42 U.S.C. 6921 et seq.) (corresponds to SIC code 4953, Refuse Systems).
     Federal facilities.
    A more detailed description of the types of facilities covered by 
the NAICS codes subject to reporting under EPCRA section 313 can be 
found at: https://www.epa.gov/toxics-release-inventory-tri-program/tri-covered-industry-sectors. To determine whether your facility would be 
affected by this action, you should carefully examine the applicability 
criteria in part 372, subpart B of title 40 of the Code of Federal 
Regulations. If you have questions regarding the applicability of this 
action to a particular entity, consult the person listed under FOR 
FURTHER INFORMATION CONTACT.

B. What action is the Agency taking?

    EPA is codifying in the CFR the three PFAS that were added to the 
EPCRA section 313 list of reportable chemicals (more commonly known as 
the Toxics Release Inventory (TRI)) pursuant to the FY2020 NDAA.

C. What is the Agency's authority for taking this action?

    This action is issued under the authority of section 313 of the 
Emergency Planning and Community Right-to-Know Act (EPCRA) (42 U.S.C. 
11001 et seq.), section 6607 of the Pollution Prevention Act (PPA) (42 
U.S.C. 13106), and section 7321 of the National Defense Authorization 
Act for Fiscal Year 2020 (FY2020 NDAA) (Pub. L. 116-92, https://www.congress.gov/public-laws/116th-congress).

II. Background

    On December 20, 2019 the FY2020 NDAA was signed into law. Among 
other provisions, section 7321(c) identifies certain regulatory 
activities that automatically add PFAS or classes of PFAS to the EPCRA 
section 313 list of reportable chemicals. Specifically, PFAS or classes 
of PFAS are added to the EPCRA section 313 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 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:
    (1) Added to the list published under section 8(b)(1) of the Toxic 
Substances Control Act (TSCA) (15 U.S.C. 2601 et seq.) and designated 
as an active chemical substance under TSCA section 8(b)(5)(A); or
    (2) Designated as an active chemical substance under TSCA section 
8(b)(5)(B) on the list published under TSCA section 8(b)(1).
    The FY2020 NDAA defines ``covered determination'' as a 
determination made by rule under TSCA section 5(a)(2) that a use of a 
PFAS or class of PFAS is a significant new use (except such a 
determination made in connection with a determination described in TSCA 
sections 5(a)(3)(B) or 5(a)(3)(C)).
    EPA has reviewed the above-listed criteria and found three 
chemicals that meet the requirements of this part of the FY2020 NDAA 
and whose identity is not confidential business information (CBI).

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                 Chemical name/CAS No.                                      Triggering action
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Perfluorooctyl iodide (507-63-1).......................  Addition to Existing Significant New Use Rule (see 85
                                                          FR 45109, July 27, 2020) (FRL-10010-44).
Potassium perfluorooctanoate (2395-00-8)...............  Addition to Existing Significant New Use Rule (see 85
                                                          FR 45109, July 27, 2020) (FRL-10010-44).
Silver(I) perfluorooctanoate (335-93-3)................  Addition to Existing Significant New Use Rule (see 85
                                                          FR 45109, July 27, 2020) (FRL-10010-44).
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[[Page 29700]]

    Under FY2020 NDAA section 7321(e), EPA must review CBI claims 
before adding any PFAS to the list whose identity is subject to a claim 
of protection from disclosure under 5 U.S.C. 552(a). Under the FY2020 
NDAA EPA must:
     Review a claim of protection from disclosure; and
     Require that person to reassert and substantiate or 
resubstantiate that claim in accordance with TSCA section 14(f) (15 
U.S.C. 2613(f)).
    In addition, if EPA determines that the chemical identity of a PFAS 
or class of PFAS qualifies for protection from disclosure, EPA must 
include the PFAS or class of PFAS on the TRI in a manner that does not 
disclose the protected information.
    Updates regarding this process will be provided via the Addition of 
Certain PFAS to the TRI by the National Defense Authorization Act web 
page at https://www.epa.gov/toxics-release-inventory-tri-program/addition-certain-pfas-tri-national-defense-authorization-act.
    As established by the FY2020 NDAA, the addition of these PFAS is 
effective January 1 of the calendar year following any of the dates 
identified in FY2020 NDAA section 7321(c)(1)(A). Accordingly, these 
three non-CBI PFAS are reportable for the 2021 reporting year (i.e., 
reports due July 1, 2022). EPA is issuing this final rule to amend the 
EPCRA section 313 list of reportable chemicals in 40 CFR 372.65 to 
include the three non-CBI PFAS identified pursuant to the FY2020 NDAA.

III. Good Cause Exception

    Section 553(b)(B) of the Administrative Procedure Act (APA), 5 
U.S.C. 553(b)(B), provides that, when an agency for good cause finds 
that public notice and comment procedures are impracticable, 
unnecessary, or contrary to the public interest, the agency may issue a 
rule without providing notice and an opportunity for public comment. 
The EPA has determined that there is good cause for making this rule 
final without prior proposal and opportunity for comment because such 
notice and opportunity for comment is unnecessary. This action is being 
taken to comply with a mandate in an Act of Congress, where Congress 
identified actions that automatically add these chemicals to the TRI. 
Thus, EPA has no discretion as to the outcome of this rule, which 
merely aligns the regulations with the self-effectuating changes 
provided by the FY2020 NDAA.

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review under Executive Orders 12866 (58 FR 51735, October 4, 1993) 
and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act (PRA)

    This action does not contain any new information collection 
activities that require additional approval by OMB under the PRA, 44 
U.S.C. 3501 et seq. As discussed further in this unit, OMB has 
previously approved the information collection activities contained in 
the existing regulations and has assigned OMB control number 2070-0212 
and 2050-0078.
    Currently, the facilities subject to the reporting requirements 
under EPCRA section 313 and PPA section 6607 may use either EPA Toxic 
Chemicals Release Inventory Form R (EPA Form 1B9350-1), or EPA Toxic 
Chemicals Release Inventory Form A (EPA Form 1B9350-2). The Form R must 
be completed if a facility manufactures, processes, or otherwise uses 
any listed chemical above threshold quantities and meets certain other 
criteria. For the Form A, EPA established an alternative threshold for 
facilities with low annual reportable amounts of a listed toxic 
chemical. A facility that meets the appropriate reporting thresholds, 
but estimates that the total annual reportable amount of the chemical 
does not exceed 500 pounds per year, can take advantage of an 
alternative manufacture, process, or otherwise use threshold of 1 
million pounds per year of the chemical, provided that certain 
conditions are met, and submit the Form A instead of the Form R. In 
addition, respondents may designate the specific chemical identity of a 
substance as a trade secret pursuant to EPCRA section 322 (42 U.S.C. 
11042) and 40 CFR part 350. OMB has approved the reporting and 
recordkeeping requirements related to Forms A and R, supplier 
notification, and petitions under OMB Control number 2070-0212 (EPA 
Information Collection Request (ICR) No. 2613) and those related to 
trade secret designations under OMB Control 2050-0078 (EPA ICR No. 
1428).
    As provided in 5 CFR 1320.5(b) and 1320.6(a), an agency may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number. The OMB control numbers relevant to EPA's regulations 
in 40 CFR are listed in 40 CFR part 9 and displayed on the information 
collection instruments (e.g., forms, instructions).

C. Regulatory Flexibility Act (RFA)

    This rule is not subject to the RFA, 5 U.S.C. 601 et seq., which 
generally requires an agency to prepare a regulatory flexibility 
analysis for any rule that is estimated to have a significant economic 
impact on a substantial number of small entities. This rule is not 
subject to notice and comment requirements under the APA or any other 
statute because although the rule is subject to the APA, the Agency has 
invoked the ``good cause'' exemption under 5 U.S.C. 553(b) (see Unit 
III.).

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action will impose 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). 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). This rule will 
not impose substantial direct compliance costs on Indian Tribal 
Governments. 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 those regulatory

[[Page 29701]]

actions that concern health or safety risks, such that the analysis 
required under section 5-501 of Executive Order 13045 has the potential 
to influence the regulation. This action is not subject to Executive 
Order 13045 because it does not establish an environmental standard 
intended to mitigate health or safety 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.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards that would 
require Agency consideration under NTTAA section 12(d), 15 U.S.C. 272 
note.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    This action does not entail special considerations of environmental 
justice related issues as delineated by Executive Order 12898 (59 FR 
7629, February 16, 1994), because it does not establish an 
environmental health or safety standard. This action involves additions 
to reporting requirements that will not affect the level of protection 
provided to human health or the environment.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, 5 U.S.C. 801 et seq., and the 
EPA will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 372

    Environmental protection, Community right-to-know, Reporting and 
recordkeeping requirements, Toxic chemicals.

Michal Freedhoff,
Principal Deputy Assistant Administrator, Office of Chemical Safety and 
Pollution Prevention.
    Therefore, for the reasons stated in the preamble, EPA is amending 
40 CFR part 372 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.  372.65, amend table 4 to paragraph (d) by adding in 
alphabetical order to the table entries for ``Perfluorooctyl iodide''; 
``Potassium perfluorooctanoate'' and ``Silver(I) perfluorooctanoate'' 
and in table 5 to paragraph (e) by adding in numerical order to the 
table entries for ``335-93-3''; ``507-63-1'' and ``2395-00-8'' to read 
as follows:


Sec.  372.65  Chemicals and chemical categories to which this part 
applies.

* * * * *
    (d) * * *

                        Table 4 to Paragraph (d)
------------------------------------------------------------------------
              Chemical name                   CAS No.     Effective date
------------------------------------------------------------------------
 
                              * * * * * * *
Perfluorooctyl iodide...................        507-63-1          1/1/21
 
                              * * * * * * *
Potassium perfluorooctanoate............       2395-00-8          1/1/21
 
                              * * * * * * *
Silver(I) perfluorooctanoate............        335-93-3          1/1/21
 
                              * * * * * * *
------------------------------------------------------------------------

    (e) * * *

                                            Table 5 to Paragraph (e)
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               CAS No.                                       Chemical name                        Effective date
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                                                  * * * * * * *
335-93-3.............................  Silver(I) perfluorooctanoate.............................          1/1/21
 
                                                  * * * * * * *
507-63-1.............................  Perfluorooctyl iodide....................................          1/1/21
 
                                                  * * * * * * *
2395-00-8............................  Potassium perfluorooctanoate.............................          1/1/21
 
                                                  * * * * * * *
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[FR Doc. 2021-11586 Filed 6-2-21; 8:45 am]
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