In addition to regulatory text, most industrial facilities rely on published guidance documents to perform numerous environmental compliance related activities. These documents often provide key information that is used to establish permitting parameters, preparing emissions estimates, demonstrate compliance, and perform applicability determinations. On October 9, 2019, President Trump signed Executive Order 13891 (EO 13891), requiring that EPA (and all other federal agencies) identify guidance documents currently in effect, and place them in a single, searchable, indexed website. This order, in conjunction with a subsequent October 31, 2019 memo from the Office of Management and Budget (OMB), established the deadline for establishment of this website as February 28, 2020. In response to this, EPA established its initial set of guidance documents. There are approximately 9,200 guidance documents currently listed across nine EPA offices (e.g., Office of Air and Radiation, Office of Water, Office of Land & Emergency Management) and the ten EPA regional offices.
The October memo provides that EPA has a chance to reinstate existing guidance documents that were not included in the initial February upload to the website, provided they do so by June 27, 2020. Past this deadline, all other past guidance documents will be considered no longer in effect (although a means for reinstating other such guidance documents does still exist). The term "guidance document" is defined in the order, and there are limits to what can be defined as such. A central principle of the order is that guidance documents should only clarify existing obligations, not be a vehicle for implementing new requirements on the public. In addition, documents that are directed to “particular parties about circumstance-specific questions” are excluded from the definition unless they were ostensibly designed to guide the conduct of the broader regulated community. Thus, it remains to be seen if any applicability determinations within EPA's Clean Air Act Applicability Determination Index (ADI) database, for example, which are typically very case specific, will be included in this new guidance document website.
EPA's longstanding ADI database, New Source Review (NSR) Policy and Guidance Document Index and Title V Operating Permit Policy and Guidance Document Index will remain in place since they contain some documents that do not meet the new “guidance document” definition and include guidance that is no longer active, but that still may be referenced to establish historical facts. Additionally, EPA is continuing to inventory documents in these other databases to identify if any should be uploaded to the new EPA guidance documents website by the June deadline.
EPA is currently accepting petitions to withdraw or modify documents currently included within the new website. Note that EPA has not established a similar means to petition the addition of guidance documents. The EO and OMB memo suggest this responsibility to identify guidance documents rests with federal agencies. However, Trinity is aware of several industry group and company-specific efforts to influence what additional documents will be added to the new website.
Given the vast number of existing policy and guidance documents which are often industry specific, Trinity is proposing that our clients review the EPA's website to ensure that critical guidance documents for their industry are listed. While there is currently not a mechanism for requesting additional documents be added, Trinity is here to support our clients and/or industry groups with reviewing and commenting on this list such that they can petition EPA to have important documents added.
If you would like more information about the potential impacts of the formalization of EPA's new guidance document website, please reach out to your local Trinity office at 800.229.6655.