Toxics Release Inventory (TRI); Clarification of Toxic Chemicals Due to Automatic Additions of Per- and Polyfluoroalkyl Substances Under the National Defense Authorization Act

ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 372</CFR> <DEPDOC>[EPA-HQ-OPPT-2024-0507; FRL 12309-01-OCSPP]</DEPDOC> <RIN>RIN 2070-AL24</RIN> <SUBJECT>Toxics Release Inventory (TRI); Clarification of Toxic Chemicals Due to Automatic Additions of Per- and Polyfluoroalkyl Substances Under the National Defense Authorization Act</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received on or before February 18, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2024-0507, online at <E T="03">https://www.regulations.gov.</E> 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 <E T="03">https://www.epa.gov/dockets</E> . <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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; email address: <E T="03">griffin.stephanie@epa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Executive Summary</HD> <HD SOURCE="HD2">A. Does this action apply to me?</HD> 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 <E T="02">FOR FURTHER INFORMATION CONTACT</E> . <HD SOURCE="HD2">B. What action is the Agency taking?</HD> 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 ( <E T="03">i.e.,</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. <HD SOURCE="HD2">C. What is the Agency's authority for taking this action?</HD> This action is issued under the Emergency Planning and Community Right-to-Know Act (EPCRA) section 313 (42 U.S.C. 11001 <E T="03">et seq.</E> ), section 6607 of the Pollution Prevention Act (PPA) (42 U.S.C. 13106), and NDAA section 7321 (Pub. L. 116-92). <HD SOURCE="HD2">D. Why is the Agency taking this action?</HD> 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 <E T="03">https://www.epa.gov/toxics-release-inventory-tri-program/addition-certain-pfas-tri-national-defense-authorization-act.</E> 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. <HD SOURCE="HD1">II. Background</HD> <HD SOURCE="HD2">A. What are TRI supplier notifications?</HD> 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. <HD SOURCE="HD2">B. What is NDAA section 7321(c)?</HD> 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: • <E T="03">Final Toxicity Value:</E> The date on which the Administrator finalizes a tox ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 21k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━