Promoting the Rule of Law Through Improved Agency Guidance Documents

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Promoting the Rule of Law Through Improved Agency Guidance Documents

By: George Colvin, CPG, CHMM

Published in May 2020 Focus on the Environment Newsletter

On October 9, 2019, the President of the United States signed Executive Order 13891, titled “Promoting the Rule of Law Through Improved Agency Guidance Documents.”  The Executive Order (EO) is the Trump Administration’s noteworthy effort to address the long-running problem of the use of guidance as regulation. We all know that guidance lacks the force and effect of law, but unfortunately it is sometimes  presented as a requirement and even when accompanied by a disclaimer,  may carry the implicit threat of enforcement action if the regulated community does not comply.

The EO essentially does two things.  First, it directs each federal agency to place all its active guidance documents into a single online guidance document portal.  Second, the Executive Order requires agencies to finalize or amend existing regulation on how guidance documents are issued, including a public notice and comment period and approval by the agency head or someone simply appointed by the president.

Shortly after publication of the EO, and without an opportunity for public review and comment, the Office of Management and Budget (OMB) issued instructions for implementing the EO through an October 31, 2019 memo titled Guidance Implementing Executive Order 13891. The OMB memo specifically requires “… each agency by February 28, 2020 to establish a single, searchable, indexed website that contains, or links to, all of the agencies’ respective guidance documents currently in effect. If an agency determines that it failed to include on its new guidance portal a guidance document that existed on October 31, 2019 it may reinstate the guidance document provided it does so by June 27, 2020.  Any rescinded guidance document that has not been reinstated by June 27, 2020, may be reinstated only by following all the necessary steps associated with the issuance of a new guidance document.”  The OMB guidance also requires that the following information be clearly visible on agency guidance portals:

  • “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 the website existing under the executive order, except to establish historical facts.”

The EPA guidance portal is located at Guidance documents on the new guidance portal are organized by EPA offices such as Office of Air and Radiation, Office of Chemical Safety and Pollution Prevention, Office of General Council, Office of Land and Emergency Management, and Office of Water.  The portal also allows for selection of guidance by EPA regional office.  After clicking on a particular EPA office or regional office, the resulting page displays a list of all the guidance documents within the particular office or region in table format.  Information provided on the table includes document name, issue date, date added to portal list, EPA identifier, topic, and a description/summary.  A very basic search function allows simple searches of key words to help limit the number of entries.  The search results can then be sorted by date.  A May 22, 2019 search of the Office of Land and Emergency Management guidance portal page for the word “closure” reduced the original list of 3,690 documents to 184. Beyond sorting the list from newest to oldest or oldest to newest, the user is left scanning the title and description field to find the desired document.  A similar search for “RCRA Online” resulted in 2,729 documents of the 3,690 total entries, indicating that at least some of the critical RCRA Online guidance was considered “in effect” and has been moved to the portal.

Each page of the portal provides a link to submit a petition for Agency modification or withdrawal of guidance documents as well as the following statement:

“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.”

The guidance portal also indicates that EPA is continuing to inventory guidance documents and anticipates providing updates prior to the June 27, 2020 deadline. If you utilize guidance that you consider critical to your business, I suggest that you verify it is included, and if not, contact the respective EPA office to determine why. Otherwise, after June 27, 2020 you may no longer be able to rely on it.

Although convenient to have all of EPA’s guidance in one searchable location, the real reason for the new single access point is only, in a small way, related to convenience or the user experience.  One only needs to scan the EO to understand that the real reason for this effort is to crack down on the overuse and reliance on guidance.  The simple requirement to place all agency guidance in one location makes clear in a less than subtle manner that the information is only guidance and should be used, or not used, with this in mind.  It is important to remember, however, that not all guidance is bad or should be ignored.  Guidance can and does, in many cases, perform an important role in providing clarification on how an agency interprets complicated regulations. Many in the regulated community rely on guidance to provide consistency both across the country and through time as regulators and administrations change. Without clear guidance, every regulator is free to interpret complicated or poorly written regulations as they see fit. 

It will be interesting to see how some EPA programs will function in the future, given the reliance on guidance. Take the RCRA Corrective Action program for example.  RCRA Corrective Action is the site-wide cleanup program for hazardous waste treatment, storage, and disposal facilities (TSDFs).  The multimillion-dollar program is implemented nearly entirely through guidance. And why is that?  Because stakeholders could not agree on regulations.  EPA tried multiple times through the proposed Subpart S regulations in 1990 and the 1996 Advanced Notice of Proposed Rulemaking (ANPR) to promulgate RCRA Corrective Action regulations. In both cases, the regulated community argued that the proposed regulations were too inflexible and burdensome, while environmental groups and public argued that the rules were not detailed or strict enough.  Without regulation, guidance was forced to fill the void.  If we are going to reduce the reliance on guidance, we should expect to see comprehensive and detailed regulations in the future, which in turn is going to make stakeholder agreement and promulgation of new rules more difficult.   This, after all, may be the long-range unstated goal of the Executive Order. 

George H. Colvin is a hydrogeologist with over 30 years of consulting experience. Much of his experience has focused on RCRA Corrective Action, RCRA closure, and groundwater investigation, monitoring, and cleanup. He holds a BS in Geology from Ohio University and MS in geology and hydrology from Vanderbilt University. He is a Certified Professional Geologist with the American Institute of Professional Geologists, a registered geologist in Kentucky, Pennsylvania, and Tennessee, and a Certified Hazardous Materials Manager.