Alert: EPA Seeks Public Feedback on Guidance Documents

Businesses now have a unique opportunity to provide input in the development and modification of guidance documents promulgated by the U.S. Environmental Protection Agency (EPA). Recently, EPA signed a final rule establishing the procedures and requirements for how the agency will manage the issuance of guidance documents consistent with Executive Order (EO) 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents.” The rule will be effective on November 18, 2020.

The purpose of this rule is to increase transparency by ensuring that the agency’s guidance documents are developed with appropriate review and benefit from public participation in the development of significant guidance documents. In addition, EPA’s final rule establishes a formal appeal process for the public to request the modification, withdrawal, or reinstatement of a guidance document. This rule will provide businesses with opportunities to provide feedback during the development of significant guidance documents and the ability to appeal for modification or withdrawal of documents already in effect.

Requirements for Issuance of Significant Guidance Documents

For businesses seeking to provide input in the development of “significant guidance documents” (as defined in EO 13891), the new rule establishes a process by which EPA will seek to incorporate their comments.

Regarding the development of any guidance, EPA will take the following steps: (1) publish a notice in the Federal Register announcing the availability of a draft significant guidance document, a draft modification of a significant guidance document, or the proposed withdrawal of a significant guidance document, to open public review; (2) provide at least a 30-day comment period before taking final action; (3) respond to major concerns and comments in the final significant guidance document or companion document; and (4) publish a notice in the Federal Register when finalizing, reinstating, modifying, or withdrawing a significant guidance document.

Procedures for Public to Petition for Modification or Withdrawal

In addition, under the new rule, a business or trade organization may seek to modify or withdraw guidance documents already in existence by petitioning EPA. The final rule details the format, content, and other requirements by which the public may submit petitions.

Specifically, the public may use two methods for submitting petitions: (1) an electronic submission through the designated submission system identified on the EPA Guidance Portal; or (2) a paper submission to EPA’s designated mailing address listed on the EPA Guidance Portal. EPA will respond to petitions within 90 days after receipt, although the agency may extend the response time once up to an additional 90 days.

Guidance Portal

Starting on the rule’s effective date of November 18, 2020, all active guidance documents should appear on the EPA Guidance Portal. While Executive Order 13891 directed agencies to complete this exercise by June 27, 2020, there are some concerns that documents have not been properly labeled with tags, correct dates, or metadata on EPA’s portal. See EPA Releases Final Rule Intended to Promote Transparency in Developing Regulatory Guidance Documents, THE NAT. LAW REV. (September 16, 2020). In addition, if a document is not on the portal, users may have trouble distinguishing whether that document fails to meet the definition of a “guidance document” or if it has been actively rescinded by the agency. See id. EPA advises the public to contact the EPA program or regional office if there are questions regarding specific guidance documents.

In summary, companies should look for opportunities to participate actively in the development of significant guidance documents, and consider whether to petition the EPA for modification or withdrawal of an active guidance document, or reinstatement of a rescinded guidance document.

Please contact Pete Thompson at PThompson@clarkhill.com or any member of the EENR Business Unit regarding any questions, assistance with providing comments on a significant guidance document, or for assistance with petitioning EPA for modification or withdrawal of a guidance document.