[Federal Register Volume 89, Number 97 (Friday, May 17, 2024)]
[Rules and Regulations]
[Pages 43331-43335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10568]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 372

[EPA-HQ-OPPT-2024-0044; FRL-9427.1-01-OCSPP]
RIN 2070-AL04


Implementing Statutory Addition of Certain Per- and 
Polyfluoroalkyl Substances (PFAS) to the Toxics Release Inventory 
Beginning With Reporting Year 2024

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is updating 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). Specifically, this action updates the 
regulations to identify seven per- and polyfluoroalkyl substances 
(PFAS) that must be reported pursuant to 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 June 17, 2024.

ADDRESSES: The docket for this action, identified by docket 
identification (ID) number EPA-HQ-OPPT-2024-0044, is available at 
https://www.regulations.gov. Additional instructions on visiting the 
docket, along with more information about dockets generally, is 
available at https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: 
    For technical information: Harichandana Karne, Data Gathering, 
Management and Policy Division (7406M), Office of Pollution Prevention 
and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, 
Washington, DC 20460-0001; telephone number: (202) 566-0595; email 
address: [email protected].
    For general information: 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, 
including but not limited to entities identified with the following 
North American Industry Classification System (NAICS) codes.
     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.
     Facilities included in the following NAICS codes 
(corresponding to SIC codes other than SIC codes 20 through 39): 
211130* (corresponds to SIC code 1321, Natural Gas Liquids, and SIC 
2819, Industrial Inorganic Chemicals, Not Elsewhere Classified); or 
212114, 212115, 212220, 212230, 212290*; or 2211*, 221210*, 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, 424710 
(corresponds to SIC code 5171, Petroleum Bulk Terminals and Plants); 
425120 (limited to facilities previously classified in SIC code 5169, 
Chemicals and Allied Products, Not Elsewhere Classified); 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). *Exceptions and/or limitations exist for 
these NAICS codes.
     Federal facilities.
    A more detailed description of the types of facilities 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 40 CFR part 372, 
subpart B. If you have questions regarding the applicability of this 
action to a particular entity, consult the person listed under FOR 
FURTHER INFORMATION CONTACT.

[[Page 43332]]

B. What action is the Agency taking?

    EPA is codifying the addition of the seven PFAS that were added to 
the EPCRA section 313 list of reportable chemicals (more commonly known 
as the Toxics Release Inventory (TRI)) since the last conforming rule 
pursuant to the FY2020 NDAA (87 FR 42651, July 18, 2022 (FRL-9427-01-
OCSPP)).

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

    This action is issued under EPCRA section 313 (42 U.S.C. 11001 et 
seq.), section 6607 of the Pollution Prevention Act (PPA) (42 U.S.C. 
13106), and section 7321 of FY2020 NDAA (Pub. L. 116-92).

II. Background

A. What is NDAA section 7321?

    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. PFAS or classes of PFAS shall 
be 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)).
    Under FY2020 NDAA section 7321(e), EPA must review confidential 
business information (CBI) claims before PFAS are added to the list 
pursuant to FY2020 NDAA section 7321, subsections (b)(1), (c)(1), or 
(d)(3), whose identities are subject to a claim of protection from 
disclosure under 5 U.S.C. 552(a), pursuant to 5 U.S.C. 552(b)(4). Under 
the FY2020 NDAA EPA must:
     Review a claim of protection from disclosure; and
     Require that person to reassert and substantiate or re-
substantiate 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.

B. What PFAS have been added to the TRI list?

    EPA has reviewed the above-listed criteria and found seven 
chemicals that meet the requirements of this part of the FY2020 NDAA 
and whose identity is not claimed as CBI.

------------------------------------------------------------------------
       Chemical name/CASRN *          Triggering action   Effective date
------------------------------------------------------------------------
Perfluorohexanoic acid (PFHxA) (307- Final Toxicity               1/1/24
 24-4).                               Value (Ref. 1).
Perfluoropropanoic acid (PFPrA)      Final Toxicity               1/1/24
 (422-64-0).                          Value (Ref. 2).
Sodium perfluorohexanoate (2923-26-  Final Toxicity               1/1/24
 4).                                  Value (Ref. 1).
Ammonium perfluorohexanoate (21615-  Final Toxicity               1/1/24
 47-4).                               Value (Ref. 1).
1,1,1-Trifluoro-N-                   Final Toxicity               1/1/24
 [(trifluoromethyl)sulfonyl]          Value (Ref. 3).
 methanesulfonamide (TFSI) (82113-
 65-3).
Lithium                              Final Toxicity               1/1/24
 bis[(trifluoromethyl)sulfonyl]       Value (Ref. 3).
 azanide (90076-65-6).
Betaines, dimethyl(.gamma.-.omega.-  CBI                          1/1/24
 perfluoro-.gamma.-hydro-C8-18-       Declassification
 alkyl) (2816091-53-7).               (Ref. 4).
------------------------------------------------------------------------
* CASRN means Chemical Abstracts Service Registry Number.

    Under FY2020 NDAA section 7321(e), EPA must review CBI claims 
before PFAS whose identities are subject to a claim of protection from 
disclosure under 5 U.S.C. 552(a) (pursuant to 5 U.S.C. 552(b)(4)) are 
added to the list. The substance with the CASRN 2816091-53-7 met the 
criteria under FY2020 NDAA section 7321(c)(1)(A)(iii) but was subject 
to a claim of protection from disclosure under 5 U.S.C. 552(b)(4) at 
that time (i.e., when the FY2020 NDAA was enacted). This substance's 
identity has since published on the non-confidential portion of the 
TSCA Inventory in 2023; therefore, pursuant to FY2020 NDAA section 
7321(e) the chemical was added to the TRI list and is being codified in 
the regulatory list by this rulemaking.
    As established by the FY2020 NDAA, the addition of these PFAS to 
the EPCRA section 313 list of reportable chemicals is effective January 
1 of the calendar year following any of the dates identified in FY2020 
NDAA section 7321(c)(1)(A). Accordingly, these seven PFAS are 
reportable beginning with the 2024 reporting year (i.e., reports due 
July 1, 2025), and EPA is issuing this final rule to amend the EPCRA 
section 313 list of reportable chemicals in 40 CFR 372.65 to include 
the seven non-CBI PFAS added pursuant to the FY2020 NDAA.
    Note that pursuant to EPA's final rule, entitled ``Changes to 
Reporting Requirements for Per- and Polyfluoroalkyl Substances and to 
Supplier Notifications for Chemicals of Special Concern; Community 
Right-to-Know Toxic Chemical Release Reporting; Final Rule'' (88 FR 
74360, October 31, 2023 (FRL-8741-04-OCSPP)), all PFAS added to TRI 
pursuant to FY2020 NDAA sections 7321(b) and (c), are designated as 
chemicals of special concern (40 CFR 372.28), which also applies to the 
seven PFAS identified in this rulemaking. Chemicals of special concern 
are excluded from the de minimis exemption, may not be reported on a 
Form A (Alternate Threshold Certification Statement), and have limits 
related to reporting requirements. For more information on the addition 
of PFAS to the list of chemicals of special concern, see 40 CFR 
372.280.

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

[[Page 43333]]

impracticable, unnecessary, or contrary to the public interest, the 
agency may issue a rule without providing notice and an opportunity for 
public comment. 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. References

    The following is a listing of the documents that are specifically 
referenced in this document. The docket includes these documents and 
other information considered by EPA, including documents that are 
referenced within the documents that are included in the docket, even 
if the referenced document is not itself physically located in the 
docket. For assistance in locating these other documents, please 
consult the person listed under FOR FURTHER INFORMATION CONTACT.

1. EPA. Toxicological Review of Perfluorohexanoic Acid (PFHxA) and 
Related Salts (Final Report, 2023). EPA/635/R-23/027F. 2023.
2. EPA. ORD Human Health Toxicity Value for Perfluoropropanoic Acid 
(CASRN 422-64-0 [verbar] DTXSID8059970). EPA/600/R-22-042F. 2023.
3. EPA. ORD Human Health Toxicity Value for Lithium bis 
[(trifluoromethyl)sulfonyl]azanide (HQ-115) (CASRN 90076-65-6 
[verbar] DTXSID8044468). EPA/600/R-22/195F. 2023.
4. EPA. Non-CBI TSCA Inventory, February 2024.

V. Statutory and Executive Order 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 review under Executive Order 12866.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA, 44 U.S.C. 3501 et seq. Burden is defined in 5 CFR 
1320.3(b). The Office of Management and Budget (OMB) has previously 
approved the information collection activities contained in the 
existing regulations and assigned OMB control numbers 2070-0212 and 
2050-0078.
    Currently, the facilities subject to the reporting requirements 
under EPCRA section 313 and PPA section 6607 must use EPA Toxic 
Chemicals Release Inventory Form R (EPA Form 9350-1). The seven newly 
added PFAS are subject to the same reporting requirements as other 
chemicals of special concern and are excluded from certain burden-
reduction reporting options (i.e., the de minimis exemption and the 
option to use Form A, range reporting). 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.
    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 Form R, supplier notification, 
and petitions under OMB Control No. 2070-0212 (EPA Information 
Collection Request (ICR) No. 2613.04) and those related to trade secret 
designations under OMB Control No. 2050-0078 (EPA ICR No. 1428.12).
    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 action is not subject to the RFA, 5 U.S.C. 601 et seq. The RFA 
applies only to rules subject to notice and comment rulemaking 
requirements under the APA, 5 U.S.C. 553, or any other statute. As 
discussed in Unit III., this rule is not subject to notice and comment 
requirements because the Agency has invoked the APA ``good cause'' 
exception under 5 U.S.C. 553(b).

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate of $100 million 
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 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. It does not have substantial direct 
effects on Tribal governments because EPA does not anticipate that 
reporting of the PFAS added to the TRI list in this action will be 
conducted by Tribes, so this rulemaking is not expected to impose 
substantial direct compliance costs on Tribal governments.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997), because it does not concern an environmental health or 
safety risk. Since this action does not concern human health, EPA's 
2021 Policy on Children's Health also does not apply.
    Although this action does not concern an environmental health or 
safety risk, this reporting rule will aid in collecting information 
regarding PFAS. This rule will be of use in identifying releases of 
PFAS to which children may be exposed. EPA believes that the 
information obtained as a result of this action could also be used by 
the public, government agencies and others to identify potential 
problems, set priorities, and take appropriate steps to reduce any 
potential human health or environmental risks related to PFAS, 
including those that may disproportionately affect children.

[[Page 43334]]

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 any 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. As such, 
NTTAA section 12(d), 15 U.S.C. 272, does not apply to this action.

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 
additions to reporting 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 as a 
result of this rulemaking 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 new PFAS information collected under this 
rule. The action will also better inform 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 as a 
result of this action 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.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, 5 U.S.C. 801 et seq., and 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.

    Dated: May 9, 2024.
Michal Freedhoff,
Assistant Administrator, Office of Chemical Safety and Pollution 
Prevention.

    Therefore, for the reasons stated in the preamble, EPA is amending 
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. Amend Sec.  372.65:
0
a. In table 4 to paragraph (d), by:
0
i. Revising the heading to the second column;
0
ii. Adding in alphabetical order entries for ``Ammonium 
perfluorohexanoate''; ``Betaines, dimethyl([gamma]-[omega]-perfluoro-
[gamma]-hydro-C8-18-alkyl)''; ``Lithium bis[(trifluoromethyl)sulfonyl] 
azanide''; ``Perfluorohexanoic acid''; ``Perfluoropropanoic acid''; 
``Sodium perfluorohexanoate''; and ``1,1,1-Trifluoro-N-
[(trifluoromethyl)sulfonyl] methanesulfonamide''; and
0
iii. Adding a note to the end of the table.
0
b. In table 5 to paragraph (e), by:
0
i. Revising the heading to the first column;
0
ii. Adding in numerical order entries for ``307-24-4''; ``422-64-0''; 
``2923-26-4''; ``21615-47-4''; ``82113-65-3''; ``90076-65-6''; and 
``2816091-53-7''; and
0
iii. Adding a note to the end of the table.
    The additions and revisions read as follows:


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

* * * * *
    (d) * * *

                        Table 4 to Paragraph (d)
------------------------------------------------------------------------
             Chemical name                  CASRN \1\     Effective date
------------------------------------------------------------------------
 
                              * * * * * * *
Ammonium perfluorohexanoate............       21615-47-4          1/1/24
 
                              * * * * * * *
Betaines, dimethyl([gamma]-[omega]-         2816091-53-7          1/1/24
 perfluoro-[gamma]-hydro-C8-18-alkyl)..
 
                              * * * * * * *
Lithium bis[(trifluoromethyl)sulfonyl]        90076-65-6          1/1/24
 azanide...............................
 
                              * * * * * * *
Perfluorohexanoic acid.................         307-24-4          1/1/24
 
                              * * * * * * *
Perfluoropropanoic acid................         422-64-0          1/1/24

[[Page 43335]]

 
 
                              * * * * * * *
Sodium perfluorohexanoate..............        2923-26-4          1/1/24
 
                              * * * * * * *
1,1,1-Trifluoro-N-                            82113-65-3          1/1/24
 [(trifluoromethyl)sulfonyl]
 methanesulfonamide....................
------------------------------------------------------------------------
\1\ CASRN means Chemical Abstracts Service Registry Number.

    (e) * * *

                        Table 5 to Paragraph (e)
------------------------------------------------------------------------
          CASRN \1\                  Chemical name        Effective date
------------------------------------------------------------------------
307-24-4.....................  Perfluorohexanoic acid...          1/1/24
 
                              * * * * * * *
422-64-0.....................  Perfluoropropanoic acid..          1/1/24
 
                              * * * * * * *
2923-26-4....................  Sodium perfluorohexanoate          1/1/24
 
                              * * * * * * *
21615-47-4...................  Ammonium                           1/1/24
                                perfluorohexanoate.
 
                              * * * * * * *
82113-65-3...................  1,1,1-Trifluoro-N-                 1/1/24
                                [(trifluoromethyl)sulfon
                                yl] methanesulfonamide.
 
                              * * * * * * *
90076-65-6...................  Lithium                            1/1/24
                                bis[(trifluoromethyl)sul
                                fonyl] azanide.
 
                              * * * * * * *
2816091-53-7.................  Betaines,                          1/1/24
                                dimethyl([gamma]-[omega]-
                                perfluoro-[gamma]-hydro-
                                C8-18-alkyl).
------------------------------------------------------------------------
\1\ CASRN means Chemical Abstracts Service Registry Number.

[FR Doc. 2024-10568 Filed 5-16-24; 8:45 am]
BILLING CODE 6560-50-P