Question # 151

151. EPCRA section 313(d) provides for the addition and deletion of chemicals to and from the list of toxic chemicals found at 40 CFR Section 372.65. According to EPCRA section 313(d)(4), any revision to the list made on or after January 1 and before December 1 of any reporting year will take effect beginning with the next reporting year. Any revision made on or after December 1 and before January 1 of the next reporting year will take effect beginning with the reporting year following the next reporting year. While all additions to the list are subject to these provisions, the Agency has not applied the delayed effective dates specified in EPCRA section 313(d)(4) for any rules deleting chemicals from the EPCRA section 313 list. To date, the promulgated final rules delisting chemicals have been effective on the date of publication of the final rule in the Federal Register. Moreover, when EPA has issued the final rule before July 1, the Agency has relieved facilities of their reporting obligation for the previous reporting year in addition to obviating future reporting. Given the statutory language, why has EPA not promulgated a delayed effective date for those actions deleting substances from the list of toxic chemicals?
Although the statutory language outlines a delayed effective date provision, EPA interprets EPCRA section 313(d)(4) to apply only to actions that add to the list of toxic chemicals. As explained in the final rule deleting di-n-octyl phthalate from the EPCRA section 313 list, published on October 5, 1993 (58 FR 51785), the Agency believes that it may, in its discretion, make deletions effective immediately upon the determination that a chemical does not satisfy the listing criteria found in EPCRA section 313(d)(2). Since a deletion from the list alleviates a regulatory burden, and 5 U.S.C. Section 553(d)(1) permits any substantive rule that relieves a restriction to take effect without delay, EPA is authorized to delete chemicals from the list effective immediately. The Agency believes that the purpose of EPCRA section 313(d)(4) is to provide covered facilities with adequate time to incorporate newly listed chemicals into their data collection processes. Because facilities can immediately cease reporting on a delisted chemical, and since the chemical no longer satisfies the listing criteria, EPA has not specified a delayed effective date for deletions from the list of toxic chemicals under EPCRA section 313.