A Conversation with EPA Administrator Wheeler: New Rule on Guidance Procedures and More

[Music] good morning welcome to the regulatory transparency project's webinar conversation with epa administrator andrew wheeler my name is nate kasmerick i'm vice president and director of the regulatory transparency project for the federal society as always please note that all expressions of opinion are those of our guests on today's program the regulatory transparency project or rtp promotes a national conversation about innovation opportunity and regulatory policy and today we are thrilled to bring you a great conversation with about the epa's new rule on guidance procedures and i'm sure much more we're fortunate to have jeff homestead guide this morning's conversation jeff is a partner at bracewell llp he's a former assistant administrator of the epa's office of air and radiation he previously served on the white house staff as associate counsel to former president george h.w bush and he was a law clerk to judge douglas ginsburg on the u.s court of appeals for the district of columbia he received his ba from brigham young university and his jd from yale law school jeff is also the chairman of rtp's energy and environment working group and we are so grateful for his continued leadership there if you'd like to learn more about both of our guests today you can visit our website regproject.org that's regproject.org where we have our guests complete bios in a second i'll turn it over to jeff who will introduce the administrator and guide this conversation after their discussion will go to audience q a so please think of the questions you'd like to ask the administrator questions can be submitted by those of you who have joined us via zoom to ask a question you simply need to send it through the chat function and that will go directly to jeff with that jeff an administrator wheeler thank you very much for joining us today well thank you nate for that very kind uh introduction i hope some of my clients are on or on the phone uh it's really a pleasure for me to introduce the head of epa the epa administrator andrew wheeler i think most of you are familiar with some of his history so i'm not going to go over it in detail but let me just remind folks that he has been at epa since april of 2018 when he was confirmed by the senate to be the epa deputy administrator but then he was named as the acting epa administrator in july of that year and was then confirmed by the senate as the head of epa in february of 2019. um i'm happy to be able to say that i've known andrew for a long time long before he was the head of epa um going back to his days as a as a staffer on on in the senate uh altogether i think he served a bit more than 12 years as a member of the staff of the senate committee on environment and public works um both as a chief counsel to the subcommittee on the clean air act and climate change and then ultimately as the republican staff director and as the most senior staff member of that committee for more than six years andrew also actually i think began his career at least his professional career during the administration of george h.w bush when he was a special assistant to an epa assistant administrator and and he has also spent some time in private practice as the team leader of the energy and environmental practice group at feige bd consulting where he was a principal um and and he knows firsthand how regulations can can affect the private sector i also wanted to mention just a few things you might not have found on his official bet on his official website um those of you who know him well know that he loves coca-cola products he loves the lord of the rings both the books and the movies i can say that like me he is a proud eagle scout and probably most importantly he is a proud ohioan who has his own secret recipe for cincinnati-style chili which he serves to his friends on important occasions and is insistent that they give it a try even if they don't think they like cincinnati-style chili maybe most importantly i think what i would like to say is andrew is the first administrator in epa history who came to the agency with an enormous amount of of knowledge and understanding about epa's regulatory programs and and who also came with that with that with a commitment to both protecting the environment and making sure that regulation was sensible and and reasonable um i will say as a former epa appointee that even in republican administrations administrators typically come and are only concerned about leaving some sort of an environmental legacy and and and andrew is is equally concerned about that and also improving the institution of epa and adopting regulatory reforms that will be enormously important i think uh not only during this administration but for many years to come so with that i would like to time turn the time over to uh to our guest the epa administrator andrew wheeler thank you jeff and i think maybe we should just end the call right now because i don't think i can top what you've just said um thank you very much for that introduction that's that's i really do appreciate that thank you jeff i want to thank nate and the federalist society for hosting this today um but i suppose since we do have some people people that have called in expecting me to talk i probably should go ahead with my remarks even though i think there's nothing i can say that we'll talk about you just said thank you um so i today i am very pleased to announce the final step in president trump's vote executive order to shed light on the federal regulatory guidance process last october the president signed executive order 13891 which directed federal agencies to finalize regulations that quote set forth processes and procedures for issuing guidance documents guidance documents were being used by executive branch agencies to adopt what amounted to be regulations that imposed legally binding requirements on the public this historic executive order is trying to change that and provide a transparent public process in which these documents are developed president trump directed the entire federal government to tackle two very important things that had never been done before the first create an online portal where these guidance documents would be posted for the public to see the second to develop a rule to codify a process for the development of guidance documents that includes public participation when it comes to guidance documents many have pointed to epa as the poster child for reform for years the agency was criticized for not making guidance documents which have nearly the force of law available for public review until directed by president trump through his executive order thousands of active guidance documents were not easily accessible to the public someone would have to go to a physical reading room often in washington dc and go through file cabinets searching for documents that applied to them or applied to facilities in their neighborhoods i remember when i was in private practice and i came in with my client to to talk to um some and i don't want to identify the program office because they were very helpful um but to to talk to them about a um not even a regulation but whether or not the epa had ever made any public comments or guidance regarding a part of a law and we met with the attorneys who had worked on it for over 15 years and they told us that they weren't familiar with anything that the agency had ever said in the subject matter but they recommended that we hire somebody to go through the file cabinets because it's very possible that something could have been said 30 or 40 years ago on the topic which is not acceptable it's not acceptable for any federal agency to do that and to not make this information available to the public you know the easiest way would have been to hire a law firm in dc to do the research these lawyers would have binders of printed guidance documents to sift through it was very inefficient an expensive way to determine if guidance documents apply to you and quite frankly no way to run a federal agency or federal government the cost of these guidance expeditions became a major barrier to anyone wanting to improve their communities facilities or companies this is also a potential barrier to compliance for regulated entities if you didn't know the guidance document existed how could you comply with it last year epa went through all of our guidance documents from the agency's beginnings 50 years ago we asked ourselves whether the document should be retained or rescinded in february we met the eo deadline by launching the first ever online portal of active guidance documents we brought these guidance documents out of darkness by publishing them online making our entire set of active guidance documents available to the public for the first time it was a major undertaking by the staff here i want to particularly commend britney boland and her staff and the office of policy for all the hard work but it took work across all of our program offices staff across the board to sift through all the guidance documents ultimately on the portal we have approximately 10 000 guidance documents so people had to identify all of them look at them to determine whether or not we needed to keep them retain them and then put them on the portal during that process we rescinded one thousand guidance documents 1 000. so almost 10 percent of the guidance documents that the agency had re-resended earlier this year some of this was just plain housekeeping and the guidance was no longer applicable some of the guidance that we rescinded was in draft form for over two years if a document lingers in draft form for years on end how can the regulated community be expected to follow it this uncertainty put the regulated community in a bind do they poke the proverbial bear and ask when a guidance document will be finalized or wait for an enforcement action regulatory certainty is crucial for industry and the public let me be clear guidance documents can be important tools that provide certainty and clarity to the public and regulated community well-designed guidance documents serve many important functions in regulatory programs epa provides guidance to interpret existing law clarifies the agency's view on the legal requirement and helps clarify existing obligations for the public but the reality is the guidance documents have been abused in the past to impose obligations on the public without any public notice and comment requirements we recognize that the agency has used guidance to regulate the public without notice or transparency so this may we proposed a rule to ensure guidance documents are subject to a formal development process used appropriately to serve the public and developed with transparency and notice to the public we received dozens of public comments providing helpful feedback that we considered and crafted into a final rule today just five minutes before joining this call i signed the final guidance rule for the epa this is the first time our agency has codified consistent requirements and procedures for guidance document development this rule sheds light on guidance document development and provides for public participation in the process for the first time ever transparency is the cornerstone of good governments the government always benefits from public input and participation and it is crucial the government serves the people this new rule which i signed today one increases the transparency of our practices around guidance it ensures guidance is subject to a formal development process is making the development of guidance accessible by establishing a public participation process it creates specific procedures for the public to petition for withdrawal or modification of existing document of existing guidance documents it improves the agency's process to manage guidance documents it establishes minimum information requirements for petitions and requires that epa respond to petitions within 90 days it establishes minimum requirements for significant guidance documents such as a 30-day comment period and disclaimer language stating that it does not bind the public it also requires approval by the epa administrator or an assistant administrator and interagency review under executive order 12866 and it requires guidance documents issued by epa regional offices also be approved by the headquarters assistant administrator responsible for administrating the particular program this is a huge change in administrative procedures at epa probably the biggest change in at least a generation the american people deserve to know what their government is doing american public has a right to this information they have a right to a seat at the table and they have a right to understand what the government is doing why they're doing it how it will affect them and they have a duty to speak up and have their voices heard this administration is prioritizing good government practices and transparency our guidance reforms are just one of the five pillars of reforms that we have put in place over the last three and a half years or finalizing before the end of this year the other four pillars include reforms on our benefit cost analysis science transparency regional realignment and lean management the cost benefit rules will for the first time define how the agency calculates the cost and benefits of proposed rules because the american public deserves to know the basis of our regulations we are also creating a science transparency rule umbrella rule for the entire agency before the end of this year and then we will start on individual science transparency rules on a statute by statute basis people deserve to know what the science the agency is relying upon in order to justify our regulations i really do believe that the more transparent we are on science and the more transparent we are on cost benefit will make our rules more acceptable to the public and to the regulated industries as jeff mentioned i started my career in the early 90s here at epa i worked on the community right to know act and i fundamentally believe that all communities in the country have a right to know about the justifications for all of our regulations i believe the science transparency regulation in particular has been attacked by a number of different groups and organizations but i really do believe that those attacking the science transparency rule would rather have our decisions made in smoke-filled back rooms instead of transparent to the entire public our fourth pillar is our regional realignment that makes it much easier for community members to interact with the agency in the past for example we did not have a clean air division in all of our regions you could go to a region website and have to struggle to figure out which division in each region you needed to talk to today all of our regions mirror the same organizational structure as our headquarters and finally we've implemented a lean management system throughout the agency to improve the way that we operate we must hold ourselves accountable to a common set of standards when president trump entered office he called for all permits to be decided within two years not approved but decided my predecessor administrator pruitt set a goal of six months for the epa to make decisions on permits what we quickly discovered however was that the agency was not tracking how long it took to issue a permit you cannot improve a process unless you know how long the process takes so for the first time in our 50-year history we now track how long each permit takes and we are hitting our six-month goal on the majority of cases in the last few years thanks to the leadership of president trump the epa has course corrected and we are building a better agency with a better version of government for the 21st century a government of the people by the people and for the people requires transparency and public participation and that is what we are doing here today epa's work affects the lives and welfare of all americans and the public needs to know what actions we are taking that may impact their lives i am proud to affirm that we have made tremendous progress over the last few years and that america's environment today is cleaner than it's ever been in our lifetimes i believe today's action will help to ensure that this and future administrations will do the people's work with the people's knowledge and consent in a transparent manner i'm happy to take your questions thank you thank you very much administrator um as as the moderator i've been given the opportunity to to just ask you a few things before we turn it over to everyone else who's who's on the call and i i guess a question that a lot of us have and this goes certainly to this guidance but also to the upcoming rules on cost-benefit analysis and science transparency will there be any kind of enforcement mechanism to make sure that private parties that may be adversely affected by an epa decision that doesn't follow these procedures will that be a basis on which to challenge an epa action that the agency didn't follow its own procedures yes absolutely which is why we're doing this by regulation you know courts generally review an agency's compliance with its own regulations so we believe that all these actions will be reviewable in the courts and this is going to help enforce the transparency um for future for for the next 50 years of epa's existence okay that i think that's great that's great to hear um you know one of the concerns that i know uh a number of of of companies have had is that often it's it's useful to be able to get epa i guess informal guidance it's astonishing as detailed as epa's regulations are i'm amazed at how many new issues arise that epa may not have thought about but that has to do with with how regulations may apply in a particular circumstance will this new process make it more difficult for epa to provide that kind of clarification on on on certain questions no i i don't believe it will this rule does not affect our ability to continue to issue non-binding direction rather this will provide additional transparency regarding new guidance and so if we if we're giving direction to a particular facility or company um that would not um that would not be impeded at all okay okay um you know i in in i obviously haven't read the final rule yet but i did go back through the proposal over the weekend and and notice that um not surprisingly more procedural requirements and in particular an opportunity for comment only apply to significant regulation i'm sorry significant guidance as opposed to all guidance um and there's a definition of what a significant guidance document is um and and like the executive order it refers to guidance documents that could have a predicted impact of 100 million or more to the economy um in the proposal epa points out that it it historically has not issued that kind of guidance and in my memory i can't think of well maybe i can think of one guidance document that that might exceed 100 million but in general that hasn't been epa's practice but i noticed that the definition of significant guidance document also talks about and i i have in front of me here so significant guidance means guidance that may reasonably anticipate it to lead to an annual effect on the economy 100 million or more but then it also says or adversely affect in a material way um a sector of the economy um you know there are certainly a number of rules i'm sorry a number of guidance documents that may be important to an individual sector but don't rise to the level of having a hundred million dollar a year impact on the economy is there a way for um for a sector a trade association a group of companies um to to to ask the epa to treat guidance as significant um even though it doesn't clearly cause 100 million dollars of impact on the economy yes there is a way and and they can in fact um you know petition epa but you know significant guidance also includes the ones that have novel legal or policy implications so it's not just the 100 million dollar threshold and one of the one of the changes you you mentioned you haven't had an opportunity to read the final rule yet one of the changes that we added from the proposal to the final is we put in a process to allow the public to petition to reinstate rescinded guidance documents so if we do rescind a guidance document such as the thousand that we rescinded we now have a process in place for the public to petition us to reconsider those rescinded guidance documents okay okay um to your to your five pillars on on regulatory reform and transparency i i would add a sixth um that is near and dear to my heart having to do with the environmental appeals board and um uh and i guess this is more of a comment than a question but but for many years the environmental appeals board which was solely a creature of sort of convenience for the administrator that said you know i don't want to deal with all these issues here here's this board um and over time that board actually came to rule on um on some important legal questions and in a couple of cases even disagreeing with something that the administrator had said um can you just comment a little bit more on on how that rule fits into your overall efforts to reform the agency and and how it works sure and um you know you may be right maybe we should consider it as a six pillar i've kind of looked at the environmental appeals board reform that we did this year as sort of more of an outward facing process on doing with the permits but you're right it does it does change how the um appeals board and it probably should be a sixth pillar um i'm looking at my staff now to tell them to please add it into my future speeches as the sixth pillar but um and you're right the the appeals board is not supposed to issue a ruling counter to what an administrator has said because the appeals board is an extension of the administrator and it was it was created by secretary riley i believe bill riley and he's he was very interested in the reforms that we did and he wanted to make sure that we kept the appeals board but it's important to remember when he created the the environmental appeals board that we were you know we're responsible for almost all the permits issued in the country and today it's i believe it's around 96 to 97 percent of all water permits are issued by the states and the on the air side all the air programs have been delegated to um all but two states so the the workload for the appeals board has decreased over time but the amount of time that they were taking on individual permits was considerable and we wanted to make sure that the permittees had the opportunity to go ahead and go to court much faster than what they were able to do if their permit was was stuck in the environmental appeals board so we did institute some reforms on the appeals board this um this year and um and i know you weighed in on that at one point i appreciate your your advice there um and it is it is very important it is very important reforms that we've done um and we're there's probably a lot of other reforms that i'm missing when i when i started with the agency i vowed to make sure that the agency would be in better shape um when i leave than when i found it not that it was in necessarily bad shape but you did point out in your introduction that most administrators focus on one or two big policy initiatives and they haven't really focused on the the day-to-day operations of the agency um you know i came to the agency as the deputy administrator and i plan to focus on the operations of the agency and i guess i haven't given really given up that portfolio since i became the administrator but i do believe that there are a lot of changes that we've made in addition to these six pillars that we've talked about today um and a lot of them through the lean management process where we have improved the amount of time it takes to review state implementation plans to move communities from not attainment to attainment i was very distressed to learn when i got to the agency and i guess i should have known this before but you know there were a lot of communities that hadn't that qualified for attainment status under the knacks but didn't bother to apply for it because the process is so technical and takes so long that they just kept their status as not entertainment and we have worked and we're continuing to work to speed up that process so that if a community of a city has attained the neck standards they should be able to move from not attainment to attainment in a much easier fashion so there's a lot of reforms that we've done across the board that we that i haven't really gotten into today that are very important for the way the agency operates well thank you let me ask you about one other thing that i know you've talked about um as one of the as one of the key priorities when you when you came to epa and that was the effort to to rebalance the relationship between epa and and the states as you well know um uh under all of the environmental statutes and one of course that i know the most about is the clean air act but there's a significant amount of discretion that is ultimately given to states as long as they meet sort of minimum requirements but but over time epa essentially displaced states in a number of areas where you know sure the state was technically granting the permit but they knew that if they didn't do it the way epa wanted that there was going to be problems do you feel like you've been successful in making the kind of institutional reforms that will ensure that that that balance considers to be appropriate that epa is responsible for the things that by statute it is responsible for but that states are given the kind of discretion and authority that they were intended to have originally i believe so i believe we're moving in that direction um you know a perfect example is you know the previous administration issued ten times the number of federal implementation plans as the four previous administrations combined which is just a horrible situation instead of working with the states on the state submitting state implementation plans that could be approved um the obama biden administration just issued fips federal implementation plans you know 10 times as many as the previous four administrations so we have reversed that trend and since march of 2017 on average we have turned one existing fip into a sip each month um so we we definitely want to work with the states more we want to work the states more on permitting now one thing we are going to do and it's it's kind of a double-edged sword we want to provide more resources for the states um and this is a second term goal for us on helping them on review the permit since the majority of permits are done by the states but at the same time as we have improved the amount of time it takes for us to review permits we want to make sure that the states are making improvements there as well when we delegate programs to the states the only real metric that we look at when we review the state program is the enforcement metrics starting next year we're going to be reviewing the permitting metrics as well and i think that's going to be a very important development and i think it's something where as we do that um it will help us and it will help the states um one other area that that we're looking at for the for the second term and i announced this in my speech at the at the nixon center um two weeks ago is a more of a focus on communities and a community-based environmentalism and one one aspect that we are we are looking at doing is combining a number of our smaller grant programs into one grant package for local communities for cities to apply for so instead of having to apply for separate grants for environmental justice for children's health programs in the water program or the clean air program we want to combine those into one master grant application for the states and what i've told the staff however is if we take 10 grants applications and each one is 10 pages long we can't give the city a 100 page grant application so we have to streamline what we ask for in the grant applications and i think this is going to help one communities think holistically on all of their environmental issues and problems at the same time is also going to help the epa think holistically and help tear down some of the silos that we have the agency is very siloed as you know we have our air program we have our water program we have our chemicals program we have our lands and hazardous waste program and the agency has not done a great job historically of working on cross media issues across all of the programs and i think our administration has had two big successes there the first is our lead strategy and the second is our pfas strategy that we announced a little over a year and a half ago and that was the pfas strategy was the first time and i know that there are people out there that think we're not moving fast enough but that was the first time we looked at all of our statutory authorities for an emerging chemical of concern including our enforcement authorities all at the same time and we've been implementing that strategy document over the last year and a half we've made tremendous progress across the board and that's the first time the agency in this 50 year history has really done that for a chemical of concern like the pfas family of chemicals and i think that's a that's a great pilot or a poster child for what the agency should do in the future we shouldn't have to create a special committee which we did of both senior and political staff across the agency to produce that document it's mostly written by the career staff and i and i i'm still applauding them they got it done very quickly but we shouldn't have to do that that shouldn't have to be pulled together on an ad hoc basis we should be able to look at things more holistically and i think by trying to structure starting with the with some of our grant programs into one holistic environmental grant for cities will help the agency look more holistically at environmental cross-media issues i i there's a there's a number of questions that i and i'm gonna i'm gonna get to them but i wanna ask one other question before i before i look through the list of questions you have from participants so um there's i think a lot of folks who are listening who appreciate the good work you've been doing at epa and so my question is and i didn't give your staff a heads up i was going to ask this question but oh assuming there is a assuming there is a second term how long can we expect you to remain the epa administrator another another four years i i serve at the at the at the description the will of the president um and um that's a very good answer he did call me this past spring and and told me to start um working on my plans and the agenda for the second term which we've been doing and i laid out at the nixon speech and i certainly intend to remain here um you know i i'm personally committed to to remain at least another two years there's a number of things i want to see to completion we should have finished all of our cost-benefit regulations by the end of 2022 and we should be well on our way of completing all of our individual statute regulations for the science transparency there's a number of things that i'm working on that's that's going to take some more time and i want to be here to see those to completion okay great well let me now turn to the questions that have been uh submitted uh by by email i guess on the chat feature there are a couple that that um point out that there are some helpful documents um whether you call them you know frequently asked questions or or pre-enforcement rulings that that that people have relied upon um which which they believe are are are helpful is there a is there a mechanism by which and and and and what they pointed out is those aren't on the list of guidance documents that is currently in the portal uh in in the final rule is there a way to to seek clarification about the status of those documents that people believe are helpful and that they've relied upon in the past i i think there is and you know this while this covers all guidance documents you know there's the executive order on the definition excludes certain types of documents that we issue such as guidance pertaining to internal operations directed to epa employees are not considered guidance documents for the purposes of this nor our guidance to grantees guidance provided to specific facilities not intended to have general applicability and legal opinions or court filings um so as far as you know q a if it has the effect of if it's written in in a manner that it would be a guidance document then that would have to be considered a guidance document but i would imagine that most q a would not be considered um guidance documents for the purposes of the eo let's say let's say there is a historic you know memorandum that folks have relied upon that that does not appear on the on the list of documents is there a mechanism for people to request that absolutely yes so the public can always reach out for clarification on a specific document and as i said they can petition to have a resented document re reinstated or they can also petition to have an existing guidance document rescinded and if there is something that the agency has put out that the people in the public believe should be considered a guidance document they have the they have they can also request that we consider that as well so yes the public has cannot has the opportunity in all three situations to ask for something to be considered a guidance document and then does the rule require epa to actually respond to those petitions as you know people can't submit petitions to epa that often linger for years and years yes and that was um i have to admit that that was the subject of much internal debate on how to address that and we ended up having a 90-day period where we have to respond to a petition so we we would have to respond to any petitions we receive within 90 days and again so if if if epa does not respond within 90 and again maybe it's because i'm a lawyer i think of bringing lawsuits but i assume that if epa doesn't follow that regulation then someone could attempt to bring a lawsuit um a deadline suit and in my experience epa tends to settle those very quickly if if it's a clear deadline they say okay we haven't met the deadline but we'll agree to do it by a date certain yes by by putting in the 90-day deadline and the fact that this would be um that people could challenge any of our decisions in court under this regulation you're right um if we if we fail to meet the 90-day um deadline then that would be cause of action to to go to court and and enforce this to meet the deadline which is why as you can imagine there was um considerable discussion between myself and the assistant administrators before we decided on the 90 day deadline just one other follow-up on that it seems to me that if you were inundated with petitions it would be very difficult to give the kind of responses that epa normally gives so for example under the clean air act as you may be aware there's a this petition process where someone challenges a permit term they have a right to petition the epa administrator and and it often takes months or even years for epa to respond to those just just in part because they give such a fulsome extended well-reasoned response is the intention that epa will will have an easier way where you can simply say in response to a certain petition you know this this petition doesn't is you know doesn't meet our definition of guidance or this petition i i'm just anticipating a workload issue that if the fpa does the kind of responses that that are done in response to title v petitions it just doesn't seem any possible like it could possibly be done within 90 days yes and that was part of our discussion and you're right i mean there's certainly be instances where the decision could be fairly quick where we notify the person that we don't consider it to be a guidance you know we do have men we have minimum criteria for petitioners that they have to on the petition where they submit to us um and you know quite frankly i i'm you know we may have a large number of immediately of people petitioning us but i i'm guessing that the work that the number of petitions we receive will be a manageable manageable number i mean it's it's not really a petition to change a sentence or two in the guidance document it's whether or not the guidance document should be rescinded or whether or not something should be put out as a guidance or maybe put out as a regulation but it's not an opportunity to nitpick on individual lines of a guidance document so it's the overall guidance document that people would have to petition and so i i i believe after maybe an initial flurry of um that we will end up with a manageable workload over time okay let me just read a couple of questions here here's one that i hope is easy for you but i didn't know the answer it simply says where on the epa website may i find the list of a thousand or ten thousand or so guidance documents oh i'm sorry where is the where can i find the list of the thousand or so guidance documents that epa decided to remove so is there a list somewhere of those that that were rejected as guidance documents i don't believe that that is publicly available at this point no on the ten thousand guidance documents that are are on the available are are on the website um and then the the public can well if they if they are aware of a specific rescinded guidance document they can certainly petition us but we've not made the 1000 necessarily public and perhaps that's something that we should do okay i'm just asking the question i'm not you know so so i um i'm just trying to answer uh so this is an an interesting one i i and it strikes me as one that probably comes from someone who either worked at epa or awira it says if the definition of significant tracks executive order 12866 it is binding in fact if it meets the definition of if it meets the the definition of a significant guidance document under this rule um uh it would i i'm sorry let me get to the bottom line question basically the question here is how can a guidance document have it's been expected to have a hundred million dollars in impact if it's non-binding and my understanding is as part of the rule they're supposed to state that the guidance documents are not legally binding so is there a tension there i think there's always an inherent intention with guidance documents to begin with and you know guidance documents are typically um as you know and you've you've responsible for some of the ten thousand guidance documents that we have on the portal um today that you know there is there is of course an inherent tension between a guidance document and a regulation and that's this does not necessarily solve that problem what this does is try to provide more transparency and what the agency considers guidance documents and and we also discussed internally whether or not the requirement of allowing the petition and going out for notice and comment for major guidance documents why not just do a regulation instead because you you have to go through the ira process and and i think um you see over time my my prediction is that we will probably end up issuing more um regulations and fewer guidance documents as a result of this um so you know that we're going to have to see how all this plays out in time and this is a huge change in the way this agency operates we put out probably more guidance documents than almost any other regulatory agency so we and i again i want to applaud the staff we were the first major agency to comply with posting the guidance documents on the portal most other departments and agencies had to request extensions for the for the executive order and we have really put a lot of time and resources and energy and not only the portal going through the 11 000 plus guidance documents but also this regulation but as any new program any new regulatory program there's going to be some growing pains and we're going to have to figure out how all this is going to operate but my commitment is to have transparency in all of this so just out of curiosity are you aware of any other agency that that surpassed the number of guidance documents that epa identified on his website uh not offhand there may be but if there are they're probably still working on it because i'm not sure that all the agencies have actually fulfilled the first part of the executive order um here's here's i think an important question this this uh questioner pointed out that nada the national air toxics assessment has created confusion and in this person's view unwarranted fear regarding certain chemicals so nada as you know is is sort of this it's not i guess official but some of the values that are used in nato create real issues regarding particular chemical compounds that that uh that that many people believe are are unwarranted is is there part of this process that can be used essentially to ask epa you know whether to consider certain parts of nata as guidance documents that should be uh perhaps even revoked or modified perhaps but you know for the most part we decided that statements on um for example under the irish program you know those aren't guidance documents if if we're putting out scientific documents or scientific information it's it's not necessarily a guidance document what may be a guidance document may be when one of our program offices uses the information in those assessments or decisions for um a guidance that or regulation so you know that's did decide that the scientific documents like that when that necessarily be considered guidance documents i could see where if if one of them ends up providing actual guidance to the regulated community or or to any regulated parties that that might be considered a guidance document but for standard questions of science that's not considered a guidance document okay um are there any upcoming significant guidance documents that people should be keeping their eye out for um you know there certainly have been some court decisions recently that have created i think some uncertainty especially under the clean water act are you uh are you able to tell us that are that maybe there may be guidance important guidance forthcoming on some of those issues out there maybe um you know i'm supposed to be briefed soon on our on our response to the maui decision for example and i know we're looking internally at whether or not we can respond appropriately by guidance or if it's going to require regulation and i'm not sure where the team has i'm not sure what their recommendations are they haven't made the recommendations to me yet um and then for example under the um the um national um the national waters protection act which replaced wotus we are working on a number of guidance documents um that will be going out the first and i believe those are already out to the army corps inspectors but we're going to be making guidance documents to go out to help people understand probably on an industry by industry basis what the requirements are under the basically the new voters rule so we are working on a number of guidances that i'm personally aware of we're also turning some of our guidance documents into regulations for example on nsr i'm not announcing anything this week but i might be next week i will look forward to that with great anticipation um you know when you when you look at the process that this regulation requires for significance guidance documents and i think you acknowledge this it looks a lot like in notice and comment rule making is is the expectation that in those cases if a final guidance document would be a final agency action that would be subject to judicial review i think certainly in some instances guidance documents have been interpreted by the courts as final agency actions um and i i agree that it appears as though we're setting up the same type of notice and comment process and that we have for rules and which is why i think ultimately i think you'll see the agency um going and you know i'm not talking about the next six months but maybe over the next few years will probably turn more of these potential guidance documents into actual regulations if you have to go through the notice and comment for a guidance document why not go ahead and put it out as a regulation so i i think you will see maybe um addition you know newer additional number of regulations and maybe fewer guidance documents but i think that's fine you know again the important thing is that all this be you know be made public and transparent well and i'm sorry if it looks like i'm looking away from you i'm i'm reading the other questions just to make sure that i've that i've covered them all um and i think i i think i have but there is there is a question here asking whether um whether the final rule prohibits epa from issuing guidance documents that have legally binding effect on private parties i mean does the will will epa always use notice and comment rule making if it intends to impose requirements on on on private parties or does this allow the agency to issue guidance documents that are legally binding no i i don't i don't believe so um i i believe if it imposes obligations on private parties we would have to go through the normal rule-making process this does not change that um but um you know it by shedding and again by shedding light on what the agency has put out in guidance of the past i think there's going to be a lot of scrutiny by um probably a lot of scrutiny by ngos on some of the guidance documents that they may not have been aware of um but also scrutiny from people in an industry when they when they look at some of the guidance documents that maybe they weren't aware of either that their competitors were so you know i think this is going to level the playing field um on on the on anyone who has to comply with our regulations and i think this will provide more transparency and information to concerned citizens concerned community groups and some of the national ngos have there been any lawsuits yet challenging documents that were put on the portal nothing i'm aware of um no okay okay i think that i've managed to cover uh i will tell you there's there's several questions about this um you know some concern that there are helpful documents that people have considered guidance that are not on that are not on the portal yet but it sounds like the final rule gives people a process that would allow them to ask epa to add documents to the portal so i wanted to note that that is a concern that several people have raised but but other than that i i see our time is up i think i've covered all the questions that have been asked and um and i thank you for your your time and for the effort that you put into reforming a number of parts of epa's process and including this rule which i think will be very helpful jeff i really appreciate your time today um and moderating this and and again the introduction but i also appreciate the advice you've given me um you know since i was first nominated to be the deputy administrator you and i've had several conversations and i appreciate your advice and your guidance and that's guidance with a small g that you've given me over the years and um and on this topic and and several others including the the appeals board thank you and nate again i want to thank you and the federalist society um this is a very important announcement um that i don't believe gets um i don't believe it's really gotten any press but i think it's very important to the legal community um it is again a generational change in the administrative procedures of the way the agency operates and i really do appreciate you allowing me to highlight this for everyone out there because i think this is something that everyone should be aware of thank you nate thank you jeff well thank you certainly uh certainly our pleasure i i think it was a momentous and informative discussion uh we're very grateful to uh jeff homestead and of course administrative uh administrator wheeler for for your time and excellent conversation today i'll just note that rtp uh our next webinar is set for this thursday at 7 pm the program has entitled the future of our health and features a great panel including fda former fda chief counsel dan troy and former fda principal deputy commissioner dr josh scharfstein so we hope you can join us on this thursday night for that event as always to our audience we welcome your feedback on today's program uh by email at rtp regproject.org thank you all for joining us have a great day [Music] you

Channel: The Federalist Society

Views: 20,938

Rating: 4.6363635 out of 5

Keywords: #fedsoc, federalist society, conservative, libertarian, fedsoc, federalism, fed soc, EPA, Environmental Protection Agency, executive order, guidance documents

Id: Ywa43mJg6H8

Length: 57min 7sec (3427 seconds)

Published: Mon Sep 21 2020