May 15, 2020

EPA Establishes New Online Guidance Portal

Executive Order 13891 (signed October 9, 2019) requires federal agencies to compile their guidance documents into a central, online guidance document portal. The Office of Management and Budget provided instructions detailing the implementation of that order; the instructions established deadlines, detailed the portal structure, defined “guidance document,” explained how to determine the economic impact of the guidance, created a list of criteria every guidance document should meet, and provided for waivers.

By February 28, 2020, federal agencies were required to establish a single, searchable, indexed website that contains, or links to, all of the agency’s respective guidance documents currently in effect. EPA’s guidance document portal is currently functioning with guidance documents organized by EPA office (e.g., Office of Air and Radiation). Each office is to have all of its active guidance documents migrated to the new portal by June 27, 2020. One of the main reasons for the change in how guidance documents are organized and written is stated on the front of each office’s guidance portal: “EPA’s guidance documents lack the force and effect of law, unless expressly authorized by statute or incorporated into a contract. The agency may not cite, use, or rely on any guidance that is not posted on this website, except to establish historical facts.” A February 28, 2020 Federal Register notice added: “Guidance documents listed on the EPA Guidance Portal do not construe any obligations or binding requirements on regulated parties, nor threat of enforcement action if the regulated public does not comply.” [85 FR 11987]

Navigating EPA’s New Guidance Portal

Navigating EPA’s new guidance portal is fairly straightforward. However, those familiar with RCRA Online or the CAA Applicability Determination Index, amongst others, may find the search function somewhat rudimentary. When accessing the portal, a link for each EPA office will direct you to another page that lists the individual guidance documents, provides a search bar, and provides a CSV text file listing all of the guidance documents. The offices linked to the main EPA portal include:

The guidance portal for each EPA office provides a list of guidance documents sorted by document name, issue date, date added to the portal, identifier (e.g., RCRA Online 14898), topic (i.e., keywords), and description/summary. At the top of the table is a menu allowing you to see a certain number of entries at a single time (default is 10, goes up to 100). There is also a simple search bar for entering any word or phrase.

Currently, existing guidance portals such as RCRA Online are still functioning with new guidance being added. It remains to be seen if these portals will still be maintained and accessible after June 2020. So, now would be a good time for organizations to peruse the new guidance portal to see if your favorite guidance is included.

McCoy Editorial

This is the second issue of RCRA Review that McCoy finds itself in the difficult position of adding an editorial comment as determined through debate among members of the editorial board. We believe that although environmental regulatory compliance may be painful at times, it also supports healthy communities and vital natural resources.

As those of us who work in the environmental compliance industry understand, guidance does not have the same weight as a regulation or law. However, it serves a very important purpose in our compliance efforts: guidance helps clarify how agencies interpret the complex regulations that result in the most confusion, concern, and enforcement actions. It helps us understand where the gray areas are so organizations can make the compliance decisions that are right for them. Our decades of experience have taught us that the absence of clear guidance is problematic because it leaves situations open to widely varying interpretation.

The executive order requiring agencies to consolidate guidance into a single portal has some merit. In McCoy’s view, however, EPA appears to be using it as a means to quietly cull guidance. While we understand that some guidance is problematic, and other guidance is no longer relevant, the agency could have followed the reasonable, long-standing, and unbiased approach of rescinding that guidance and/or issuing new guidance. Inactivating guidance as part of a significant document migration process makes it seem as if there is an alternative agenda.

Another problematic issue with this approach is that users won’t know what guidance is really active on June 27, 2020, because the agency has not said which guidance documents will not be migrated, either by accident or intent. Thus, without going to the portal and searching for each piece of guidance upon which you rely, you would not know whether that guidance is active. This brings confusion—not clarity—to environmental professionals who are responsible for keeping their operations in compliance and their company’s reputation safe from controversy.

Furthermore, McCoy’s editorial board suggests that EPA should move all of the guidance for its various programs to the portal and then openly rescind any guidance that it wishes to make “inactive.” In addition, the agency should, at minimum, publish a list of guidance documents that are being left behind. This would provide both regulators and regulated community an opportunity to consider the implications and adjust accordingly.

McCoy and Associates has provided in-depth information to assist environmental professionals with complex compliance issues since 1982. Our seminars and publications are widely trusted by environmental professionals for their consistent quality, clarity, and comprehensiveness.

Disclaimer

Considerable care has been exercised in preparing this document; however, McCoy and Associates, Inc. makes no representation, warranty, or guarantee in connection with the publication of this information. McCoy and Associates, Inc. expressly disclaims any liability or responsibility for loss or damage resulting from its use or for the violation of any federal, state, or municipal law or regulation with which this information may conflict. McCoy and Associates, Inc. does not undertake any duty to ensure the continued accuracy of this information.

This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.