June 16, 2021

New Rule Rescinds Old Rule on Issuing Guidance

On October 19, 2020, EPA finalized a rule establishing procedures for managing guidance via the agency’s central guidance portal. [85 FR 66230] The rule created a new 40 CFR Part 2, Subpart D titled “Guidance Procedures.” Both the rule and guidance portal resulted from Executive Order (E.O.) 13891, issued October 9, 2019, as discussed in previous articles. On January 20, 2021, E.O. 13992 was signed, revoking E.O. 13891. New E.O. 13992 resulted in EPA issuing a May 18, 2021 final rule rescinding Part 2, Subpart D and removing the agency’s guidance portal. [86 FR 26842]

After reviewing E.O. 13992 and the 2020 rule, EPA found there was actually reduced flexibility in issuing public guidance. Additionally, EPA determined there were already procedures in place to ensure public transparency and involvement in developing agency guidance. For example, stakeholders can still petition EPA regarding regulatory guidance, consistent with the Administrative Procedure Act. Guidance which was previously found on the now-obsolete portal, can still be found in previously-developed databases. For example, RCRA guidance documents can still be found on RCRA Online.

EPA has replaced the central guidance portal with a couple of websites that direct users to guidance available in previously-developed databases. Starting with EPA guidance documents, users can quickly get to regulatory and guidance information by topic, and from there to databases containing media-specific guidance. The RCRA hazardous waste portion of this regulatory and guidance information site can be accessed here.

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This document addresses issues of a general nature related to the federal environmental regulations. Persons evaluating specific circumstances dealing with the environmental 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.