[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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