The Nickel Report

The Environmental Protection Agency (EPA) will be 50 years old this year.  Over the past half-century, EPA has issued literally tens of thousands of documents explaining its extensive regulatory programs.  These guidance documents come in a wide variety of forms.  Some may be signed by the EPA Administrator. Many more are signed by officials in program offices, in the Regions, or even by technical staff.  Some may provide broad national guidance, while others interpret rules in source-specific factual settings.  Guidance may appear in preambles to rules, in response to “frequently asked questions” (FAQS), in applicability determinations, in Environmental Appeals Board decisions, in General Counsel opinions, and in many other ways.  And of course, as Administrations change, guidance may change to reflect new policies.  Anyone who has had to manage environmental compliance is familiar with the challenges of identifying operative agency guidance.

Agency guidance will be subject to certain standards and procedures under a proposed rule published by EPA in the Federal Register on May 22, 2020.  According to EPA, the proposed rule is “intended to increase the transparency of EPA’s guidance practices and improve the process used to manage EPA guidance documents.”  EPA will accept written comments on the proposed rule until June 22, 2020.

The Trump Administration has pursued an ambitious goal to reduce federal regulation. The administration has slowed the promulgation of new rules, and in early 2017 a bevy of late-term Obama-era rules still subject to the Congressional Review Act were overturned by the GOP Congress.