U.S. EPA Has Finalized Its Guidance Rule

On October 19, 2020, the U.S. Environmental Protection Agency’s (U.S. EPA’s) final rule titled Guidance; Administrative Procedures for Issuance and Public Petitions was published in the Federal Register. This final rule adds Subpart D to 40 CFR Part 2 – Public Information addressing guidance procedures for the U.S. EPA consistent with last year’s Executive Order 13891, Promoting the Rule of Law Through Improved Agency Guidance Documents. The order directed federal agencies, including U.S. EPA, to review their historical guidance documents, determine which documents should be retained, and make them available via an online guidance document portal.  The order also directed the agency to establish a process for guidance documents (this rulemaking).  Subpart D establishes minimum requirements for guidance documents including basic identifying information and a requirement to include a disclaimer that the guidance document does not have the force of law and that the document intends only to provide clarification regarding existing law. Guidance documents issued by the U.S. EPA regional offices require approval from the U.S. EPA official at headquarters who is responsible for administering the program to which the guidance document pertains. The rule also establishes significant guidance document requirements and procedures mainly requiring at least a 30-day public comment period on a draft significant guidance document, or a draft modification or withdrawal of a significant active guidance document.  In other words, it will be a little harder to issue, modify, or withdraw significant guidance.

The purpose of the rule is to ensure guidance documents are developed with appropriate review, are accessible and transparent, and benefit from public participation.  The public can also petition for modification or withdrawal of an active guidance document or reinstatement of a rescinded guidance document.  The petition can be submitted on the U.S. EPA Guidance Portal (Portal). The U.S. EPA will respond to the petition within 90 days of receiving the petition and may request a one-time extension to provide a response. Note that the rule does not affect past actions that relied upon guidance documents that are rescinded.

Active guidance documents are made available on the Portal. The Portal was first made publicly available on February 29, 2020 and was fully populated with active guidance documents by July 31, 2020.  Several industry associations provided input to U.S. EPA regarding what documents they should include (and what not to include).  The Portal has a search function if you are curious whether a specific guidance document is posted, or you can download a .csv file that lists all of the documents included.  Beginning November 18, 2020, the effective date of the rule, any guidance document that is not located on the Portal may not be relied upon by the agency. The Portal only contains documents that meet the definition of guidance document.  The definition of guidance generally does not include site-specific determinations like those found on the New Source Review Policy and Guidance Document Index or the Applicability Determination Index – these two websites are still available for searching and site-specific determinations are not subject to the guidance rule.  Broadly applicable guidance such as the Seitz memo documenting that potential emissions for emergency generators should be calculated based on 500 hours of operation, compliance guides for several different rules, and the 2019 guidance on interpreting “adjacent” for new source review and Title V source determinations are included on the Portal.

Should there be a change in administration as a result of the presidential election just days away, this rule makes it more difficult for that future administration to modify and rescind active guidance documents that have been reviewed and approved or released under the current administration and are posted to the Portal (e.g., the 2017 Scott Pruitt projected actual emissions memo).  Prior to the Executive Order and this regulation, guidance documents could be modified and rescinded without public participation. Additionally, although the next president could revoke Executive Order 13891 rather easily, it would take a regulatory action or use of the Congressional Review Act to rescind or revise the new guidance rule.  Contact Claire Corta or your ALL4 project manager for additional information on how this new rule could affect you going forward.