2020 Environmental Real Estate IssuesOn September 14, EPA Administrator Wheeler signed a final rule “to establish consistent requirements and procedures for the issuance of guidance documents.”  On the same day, Administrator Wheeler discussed the rule in a speech to the Federalist Society, characterizing the “historic rule” as “perhaps the biggest change in administrative procedures in a generation.”

Limited Role of Guidance Documents
In an accompanying news release, EPA said its guidance documents should be a tool for EPA to “clarify existing obligations” but “should not be a vehicle for implementing new, binding requirements on American businesses.”  The Trump Administration has charged prior administrations have used guidance documents inappropriately to regulate the public without following formal rulemaking procedures.
According to the news release, the final rule will: 1) establish a formal petition process for the public to request that EPA modify, withdraw or reinstate a guidance document; 2) ensure EPA’s guidance documents are developed with appropriate review and are accessible to the public; and 3) allow public participation in the development of significant guidance documents.

Portal with All Active Guidance
The news release also mentioned EPA’s July 2020 completion of a “guidance portal that provides public access to agency guidance documents.”  For the first time, “the entire set of active guidance” is now available to the public, consisting of over 9,000 guidance documents.
For a link to the news release, which includes links to the guidance portal and for accessing the final rule, https://www.epa.gov/newsreleases/epa-finalizes-first-ever-rule-promote-transparency-developing-regulatory-guidance