EPA Issues Proposed Rule Intended to Increase Transparency and Public Participation Related to Agency Guidance Documents

The proposed rule does something that the EPA has never done before in this context: it allows the public to ask the EPA to modify or withdraw active EPA guidance documents, including guidance documents issued before the rule was proposed. Equally as significant, the EPA is populating a “Guidance Document Portal” that will include all active guidance documents such that, according to the EPA’s proposal, any guidance document excluded from the portal “will have no effect” going forward.

The EPA’s latest proposed rule is part of the Trump Administration’s efforts to make the role of guidance documents more transparent and to limit their role in the administrative process. In the Trump Administration’s view, only statutes and rules promulgated under the Administrative Procedure Act (APA) have the force of law and should guide party behavior. The Administration has argued that formal and informal guidance documents produced without APA formalities have a far more limited role. The EPA intends the proposed rule to “improve the ability of members of the public to more easily identify all the guidance documents that the EPA uses and relies upon, resolving any concerns over the difficulty assessing the final and effective guidance of the agency.”

The proposed rule has three important parts:

First, the proposed rule explains where the EPA must publish guidance documents it intends to have legal effect. The rule provides that the EPA must include a guidance document in its recently established Guidance Portal. If it doesn’t, the rule i) is not final EPA guidance, and (ii) “will have no effect.” The decision to include and exclude “guidance” documents from the Portal leaves many questions unanswered: What is the impact of the EPA’s decision to exclude guidance documents that it relied on before publishing the proposed rule from the Portal? What effect does this have on other EPA policy documents, including Question and Answer documents that the EPA often issues to provide guidance under the Resource Conservation and Recovery Act?

Second, the EPA lists elements that all future guidance documents must contain. The rule would specifically require that the EPA issue a disclaimer that guidance does not have the force and effect of law and does not bind the public. The EPA also proposes to exclude all mandatory language from guidance documents, including “shall,” “must,” “required,” or “requirement.”

Finally, the EPA proposes a series of measures that would bring the review process for all guidance documents closer to the APA procedures currently reserved for formal notice-and-comment regulations. The proposed rule:

• Provides opportunity for public review and comment for all new, modified, or withdrawn “significant” guidance documents.
• Requires that the EPA “assess” the potential economic impact of guidance documents reasonably anticipated to affect the economy in an amount exceeding $100 million per year.
• Require the EPA to respond to major public comments on guidance documents.
• Requires presidentially appointed EPA officials in Washington to sign-off on all guidance documents developed by EPA regional offices.
• Allows the public to file petitions for the withdrawal or modification of any guidance document. The EPA would have 90 days to respond to these petitions. Petitions would be limited to changing guidance documents and any petitions that would seek changes to statutes or regulations resulting from formal rulemaking (i.e. would be presumptively invalid).

The EPA is soliciting public comment on many issues, including those discussed here. Any comments are due on or before June 22, 2020.