27 May 2020

EPA Outlines New Guidance Procedures, to Include Public Comment and Mechanism to Request Modification of Existing Guidance

The Environmental Protection Agency (EPA or Agency) has proposed new regulations to establish a transparent process for issuing future interpretive guidance documents. “Guidance” generally refers to memoranda, letters, bulletins or “frequently asked questions” Web pages that clarify EPA interpretations of regulations or Agency-administered programs and assist regulated entities with regulatory compliance. Historically, EPA has not issued guidance through an Administrative Procedure Act notice-and-comment process. Accordingly, courts have generally found that interpretive guidance is not legally binding in the same way as a promulgated and codified regulation. However, EPA does expect that regulated entities be familiar with interpretive guidance, and the public has not had a clear mechanism to challenge these documents.

EPA proposes to define “guidance document” and “significant guidance document,” standardize certain elements of guidance, establish a protocol for opening new significant guidance documents to notice and public comment, and provide a petition process for the public to ask EPA to modify or withdraw active guidance documents. The proposal would also require EPA to maintain an online portal of all active guidance materials, which EPA has already developed, as we discussed here. If adopted, allowing public comment may also lead to judicial review of guidance as “final agency action.” EPA is proposing this new guidance protocol to conform with the Trump administration’s October 2019 Executive Order 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents.” EPA is accepting public comment on this proposal through June 22, 2020.