U.S. EPA Announces New Guidance Portal

In a February 28, 2020 Federal Register notice, the U.S. Environmental Protection Agency (U.S. EPA) announced a new web portal that allows the public to search for agency guidance documents.  The creation of this portal was mandated by the October 9, 2019 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 White House Office of Management and Budget (OMB) issued an implementing order on October 31, 2019 that established deadlines for creation of the portal.

Per the OMB implementing order, the new portal indicates that U.S. EPA guidance documents lack the force and effect of law, and that the agency may not cite, use, or rely on any guidance not posted on the website (except to establish historical facts).   The website also contains a link for the public to petition to withdraw or modify a guidance document.  As we have seen with the issuance of several guidance documents by the current administration, the order also requires U.S. EPA to establish a process whereby all guidance documents are subject to a public comment period of at least 30 days.

It will be important to review the guidance documents that have been retained or omitted from the website when making future regulatory applicability arguments.  According to the current list of guidance documents, there are a little over 900 documents that U.S. EPA has chosen to retain as part of the Office of Air and Radiation database.  The other U.S. EPA offices and regions also have their own guidance databases.   Because the OMB implementing memo indicates that agency statements of specific, rather than general, applicability are not considered guidance, U.S. EPA has apparently chosen to retain only general guidance memos and documents on the portal, and not site-specific determinations.  For example, these documents were retained:

• Seitz memo documenting that potential emissions for emergency generators should be calculated based on 500 hours of operation.
• Boiler MACT small entity compliance guide.
• Control techniques guidelines (CTG) documents for several source categories.
• Definition of regulated pollutant for particulate matter for purposes of Title V.
• The 2019 guidance on interpreting “adjacent” for new source review and Title V source determinations.
• The 2017 Scott Pruitt projected actual emissions memo.

Oddly enough, the pollution control projects memo was also included in the database (although related regulatory provisions in the PSD rules were vacated), but the project emissions accounting memo is not currently included (perhaps because U.S. EPA is engaged in finalizing that rulemaking).  The New Source Review (NSR) Policy and Guidance Document Index is still live, as is the Applicability Determination Index (ADI), and these locations contain many memos and documents we refer to often.  U.S. EPA is still working on determining what documents should be retained on the new site and which guidance documents should be formally rescinded.  Utilize the comment feature of the portal if you have suggestions.  Going forward, U.S. EPA will publish a rulemaking that specifies the process for significant guidance and clarifies that any guidance document not on the portal after June 27 is not active and cannot be relied upon.  ALL4 is reviewing the guidance portal and working with industry groups to determine how best to comment.  Contact Amy Marshall at amarshall@all4inc.com or 984-777-3073 for more information.